Bid protests at the Government Accountability Office (GAO) have spawned a distinct area of the law. With multiple evaluation schemes to consider, there are an ever-growing number of strategies for disappointed offerors to challenge alleged agency procurement errors.
Just like there are best practices for bid protests, there are also strategies to avoid at all costs. Chief among the arguments a protester should steer clear of is “mere disagreement” with the agency.
In a nut shell, “mere disagreements” arise where the protester challenges the agency’s decision based only on the notion that it deserved a better score, more strengths, better adjectival rating (and so on). These arguments do not identify mistakes by the agency – they just wish the agency reached a different result during the evaluation.
GAO is not shy about denying “mere disagreement” protests out of hand. For example, in a recent bid protest decision concerning an Army IT support services contract, GAO found that the protester’s arguments concerning the number of strengths/weaknesses and adjectival ratings assigned by GAO did not offer any grounds to sustain the protest.
The underlying rationale for the decision is GAO’s unwillingness to substitute its own judgment for that of the agency. In other words, GAO finds that the agency is in the best position to assess its own needs and evaluate proposals.
GAO is also unwilling to split hairs when it comes to evaluation ratings. For example, in this case, the protester unsuccessfully argued that the agency’s determination that a portion of its technical proposal included only strengths and no weaknesses should have automatically resulted in the assignment of a “significant strength.” GAO disagreed, finding that the RFP defined a significant strength as an aspect of a proposal that would be “appreciably advantageous to the government during contract performance.” While the protester’s proposal may have exceeded certain requirements, GAO would not step in to overrule the agency’s determination that the proposal did not significantly exceed those requirements.
So, if “mere disagreement” is out, does that mean it is impossible to challenge an agency’s evaluation of your proposal? Not at all.
The key is to focus on the essential element of all bid protests – a procurement error by the agency resulting in competitive prejudice (i.e., a diminished opportunity for contract award). Rather than focus on ratings or strengths, the protest should address specific errors made during the evaluation process. Did the agency misinterpret part of your proposal? Or overlook something altogether? Did the agency offer the awardee an advantage that your firm did not receive?
While these kinds of errors may be difficult to pinpoint at first, a skilled debriefing strategy can help draw them out.
The bottom line is that bid protests require a significant investment of time and resources. If your firm’s only arguments amount to mere disagreement with the agency, those resources are likely better spent elsewhere.
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