It seems that when we discuss GAO bid protests, we most often refer to the post-award variety. Your company lost a contract award due to a procurement error by the agency (like the failure to adhere to the RFP requirements or properly evaluate proposals) – and the fight is on to win it back.
However, Federal contractors have another effective tool at their disposal – the pre-award protest.
A pre-award protest is based on alleged improprieties in the RFP that are apparent prior to the time set for receipt of initial proposals (or, in the case of an IFB, bid opening). If a firm detects a solicitation defect while preparing its proposal, a protest concerning that defect must be filed before the deadline set by the agency for the submission of proposals.
Pre-award protests are important for a number of reasons. First, they are waived if not timely raised. That is, if your firm loses out on a contract, you cannot turn back the clock to challenge an unclear RFP term. That ship has sailed. Second, pre-award protests can an essential part of your firm’s proposal preparation process. By clarifying the RFP upfront, you can set your firm up to be in the best position to win the award later down the line.
A recent GAO decision presents a great example of the effective use of a pre-award protest. The protest concerns an RFP issued by the U.S. Department of Agriculture for large air tanker services for wild land firefighting.
After reviewing the solicitation, one potential offeror filed a pre-award protest arguing that the agency’s restriction on retardant tank sizes (no larger than 5,000 gallons) was unduly restrictive. The protester argued that the restriction unnecessarily excludes larger tanker fleets and is not grounded in a reasonable basis (i.e., not related to the agency’s actual needs).
In responding to the protest, the agency argued that larger tankers are not suitable for a number of technical reasons related to the logistics of coordinating and operating firefighting missions. The contractor disagreed – and proceeded to poke holes in the agency’s logic with facts and statistics related to (among other things) airfield weight limits, dimensions, and locations.
GAO sustained the protest and directed the agency to go back to the drawing board to reassess its actual needs. GAO’s decision is less about firefighting management and more an indictment of the agency’s lack of logical planning related to logistics of the tanker size limitation.
By filing the protest, the potential offeror (whose fleet of tankers all exceed the size restriction) not only clarified the RFP, but also opened itself up to a potentially new contracting opportunity. Federal contractors should be mindful of the potential upside of pre-award protests – even with respect to procurements where your firm starts on the outside looking in.
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