Bid Protests – What Can I Protest if I Did Not Win a Procurement?

Dunlap Bennett & Ludwig PLLC

What happens when you are notified by the procuring agency that you have not been awarded the contract that you submitted a bid, proposal, or quote for? What exactly can you protest? Hiring an experienced, knowledgeable attorney can help guide you through this process, addressing questions and concerns that may arise.  

The frustrating answer is that it depends. While all bid protests do have some common threads, it all depends on the facts surrounding the procurement in question. Even with the fact and procurement-specific nature of bid protests, there do emerge some common grounds of protest that may help you in analyzing your specific issues. 

The grounds of protest touched on below provide a brief explanation of some potential issues to look for in your unique circumstances.

There are various issues that can arise pre-award. Sometimes before even submitting a response to a solicitation, you might notice some problems that will prevent you from submitting a complete response. There may be valid reasons to protest those issues. 

For example, the terms of the solicitation are incomplete, or there are conflicting terms, or there are ambiguities apparent on the face of the solicitation. In other instances, after proposal submission but before award, you may be excluded from the competitive range. Depending on the facts, that exclusion may be improper. Filing a bid protest can quickly become overwhelming. Hiring an attorney experienced in this area can be beneficial in guiding you on the journey ahead.

Other issues arise post-award. These include, but are not limited to:

Improper Sole Source Awards

This is for those instances where you find out the agency has made a sole source award, but your company is ready, willing, and able to supply the goods or services being procured at a fair and reasonable price such that it is unreasonable for the agency to fail to use full and open competitive procedures.

Improper Evaluation

This can arise under one or all of the evaluation factors for a given procurement. 

  • This is where the agency does not properly evaluate your proposal against the evaluation terms delineated in the solicitation. This is a common ground of protest relating to your proposal, but also can be raised against the agency’s evaluation of the awardee’s proposal.

Discussions (When Conducted)

This can be a lack of equal discussions, where the agency enters discussions with only one offeror or provides more detailed discussions to other offerors. 

  • This can also mean a lack of meaningful discussions where the agency fails to point you in the direction required to improve your proposal. Sometimes the agency conducts further discussions with only one offeror after the close of discussions and allows that offeror to further improve their proposal such that they win the award.

Disparate Treatment

This happens when an agency treats identical issues unfairly and in a different manner. 

  • For example, you and the awardee both fail to include letters of intent for a proposed program manager. Your company receives a weakness for this oversight, but another offeror does not, and that offeror subsequently receives a higher rating for that factor and then the award, based in part on that higher rating.

Organizational Conflicts of Interest (OCIs)

OCIs arise in various situations. For instance, an awardee helps write the statement of work for the procurement in question. Sometimes a firm is required to perform an analysis and make recommendations regarding products that on a separate contract might be manufactured by competitors. 

  • In some instances, a contractor has access to source selection information as part of its work on a different contract, and that information would provide an advantage over its competitors on the procurement in question.
  • Tradeoff analysis and best value determination. When required by a solicitation, where the agency fails to consider meaningful discriminators between proposals, even if proposals are rated equally, there could be an issue. A further ground of protest here would be that a tradeoff analysis and best value determination based on a faulty evaluation of one or all of the evaluation factors is itself faulty.

The facts of each individual case will vary. Some facts may lend themselves readily to four or five different grounds of protest. Some facts will only lend themselves to one ground of protest.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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