Bid Protests Considered in the Equation of Contract Wins

  |  March 30, 2009

Examples were outlined recently by Anne B. Perry, attorney with Sheppard Mullin Richter & Hampton LLP, at a seminar co-hosted by OCI and Computer Marketing Associates. Her examples included:

  • Unduly Restrictive or Untimely Specifications – If you see a sole source announcement based upon a questionable claim of unique qualification or overly restrictive pre-qualification terms. Or, if an agency issues last minute material changes to the solicitation without affording the contractor time to reflect those changes in its proposal.
  • Ambiguous Requirements – If (prior to proposal submittal) you find the terms of a solicitation to be ambiguous or capable of more than one meaning and the agency does not satisfy your written request for clarification.
  • Lack of Meaningful Discussions – If discussions occur and you are not advised of any deficiencies and significant weaknesses in your proposal. Or if, prior to award, you learn that you did not make the competitive range due to an adverse past performance finding about which you have not been given the opportunity to respond.
  • Improper Cost/Technical Trade-off or Cost Realism Analysis – If, in a negotiated procurement and to your detriment, cost or price has been treated insignificantly (perhaps only 5-10 percent of the evaluation weighting) or inadequately.
  • Procurement Integrity Violation – If you believe a competitor has received exclusive information from an agency in possible violation of the Procurement Integrity Act or Industrial Security Act.
  • Bait-and-Switch – If a competitor proposes personnel that it never intends to provide or has no reasonable basis for believing will be available at the time of performance.
  • Improper Technical Evaluation – If you believe the contract award to your competitor has not been performed in strict accordance with the disclosed factors and subfactors for evaluation. Or, if unstated evaluation factors have been applied. Or, if minimum mandatory requirements of the solicitation have been relaxed.

The proposal professional can figure prominently in uncovering such solicitation-based ambiguities or in recognizing potential fallacies in an unfavorable determination from the government. Attention to such details led to 1,269 protest filings at GAO (including 48 cost claims) last year. Of those, there was a 13 percent sustain rate (50 out of 290) in protest case decisions. Among an additional 120 cases that went to alternate dispute resolution (ADR), there was a 92 percent rate of success.

Note: The rest of this article is too lengthy for presentation in this newsletter. Other Sections include the following:
 What May Be Protested
Process is Simple but Must be Timely
The Benefit of Early Debrief
Use of Counsel and Protective Orders
Lessons Learned for the Proposal Writer

Anyone wanting the full article can send an email to Silvia Morales at and say "Please send the full article on protests."


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