Concept
The Fulcrum of a Valid Protest
A bidder’s decision to legally protest a Request for Proposal (RFP) award is a calculated one, resting on the belief that the procurement process was fundamentally flawed. The most common grounds for a protest are not esoteric legal loopholes, but rather demonstrable failures by the awarding agency to adhere to its own stated rules and evaluation criteria. At its core, a protest alleges that the competition was unfair, and that the outcome would have been different had the agency followed the solicitation’s terms.
The Government Accountability Office (GAO), a primary arbiter of these disputes, consistently finds that the most prevalent reason for sustaining a protest is an unreasonable technical evaluation. This underscores a critical principle ▴ the agency’s discretion is not absolute, and its judgments must be rational, documented, and consistent with the RFP’s framework.
A flawed technical evaluation by the procuring agency stands as the most frequent and successful basis for a bid protest.
Beyond the technical evaluation, other significant grounds for protest emerge. These include flawed selection decisions, where the agency’s best-value tradeoff is poorly reasoned or undocumented, and unreasonable cost or price evaluations. For instance, an agency might improperly conduct a price realism analysis, leading to the unfair disqualification of a bidder with a low but defensible price.
Unequal treatment is another potent basis for protest, where an agency holds bidders to different standards, penalizing one for an omission it overlooks in another. Ultimately, a successful protest hinges on the bidder’s ability to present a compelling case, supported by evidence from the debriefing and the agency’s own procurement record, that the award decision was arbitrary, capricious, or contrary to law.
Strategy
Navigating the Protest Landscape
Strategically approaching a bid protest requires a nuanced understanding of the different types of flaws that can infect a procurement. Protests can be broadly categorized into pre-award and post-award challenges. Pre-award protests address issues with the solicitation itself, such as ambiguous requirements, unduly restrictive specifications, or the omission of legally required clauses. A bidder who believes the RFP is fundamentally flawed must raise these issues before submitting a proposal, as waiting until after the award can be deemed untimely.
Post-award protests, on the other hand, focus on the agency’s evaluation of proposals and the award decision. These are the more common type of protest and typically allege errors in the technical, cost, or past performance evaluations.
Key Grounds for a Successful Protest
A successful protest strategy often involves identifying multiple, interrelated grounds for challenging the award. While a flawed technical evaluation is a powerful argument, it can be strengthened by evidence of other procedural missteps. For example, if an agency’s technical evaluation was unreasonable, it is also likely that the resulting best-value tradeoff decision was flawed. Bidders should also scrutinize the agency’s discussions with offerors.
Improper discussions, such as providing one bidder with more information than another, can be a potent basis for protest. Similarly, evidence of collusion between bidders or a conflict of interest on the part of an agency official can lead to a successful protest.
A multi-pronged protest strategy, alleging several interconnected evaluation errors, is often more effective than relying on a single claim.
The following table outlines some of the most common grounds for a bid protest, along with a brief description of each:
| Ground | Description |
|---|---|
| Flawed Technical Evaluation | The agency failed to follow the solicitation’s technical evaluation criteria, or its evaluation was unreasonable, irrational, or undocumented. |
| Unreasonable Price/Cost Evaluation | The agency’s evaluation of a bidder’s price or cost proposal was flawed, such as an improper price realism analysis. |
| Unequal Treatment | The agency held bidders to different standards, penalizing one for issues it overlooked in another. |
| Flawed Selection Decision | The agency’s best-value tradeoff decision was poorly reasoned, undocumented, or inconsistent with the solicitation. |
| Improper Discussions | The agency engaged in misleading or unequal discussions with offerors. |
In addition to these common grounds, bidders may also protest an award based on issues related to small business subcontracting requirements. For example, a bidder could challenge the small business certification of the awardee. Ultimately, the success of a protest depends on the specific facts of the case and the bidder’s ability to present a clear and convincing argument to the GAO or the relevant court.
Execution
A Framework for Protest Execution
Executing a successful bid protest requires a methodical and evidence-based approach. The process begins with a thorough review of the debriefing provided by the agency. While some debriefings are more informative than others, they are the primary source of information for identifying potential protest grounds.
A bidder should carefully compare the agency’s evaluation of its proposal with the solicitation’s requirements and the evaluation of the awardee’s proposal, if that information is available. Any inconsistencies, errors, or unsupported conclusions should be documented.
Building the Protest Case
Once potential protest grounds have been identified, the next step is to gather the evidence needed to support them. This may involve requesting a copy of the agency’s procurement record, which includes the proposals of all offerors, the evaluation worksheets, and the source selection decision document. A careful review of this record is essential for building a strong case. The following list outlines the key steps in executing a bid protest:
- Thoroughly review the debriefing and compare the agency’s evaluation with the solicitation’s requirements.
- Identify all potential protest grounds, including flaws in the technical, cost, and past performance evaluations, as well as any procedural errors.
- Gather and analyze the evidence, including the agency’s procurement record, to support the protest grounds.
- Draft a clear and concise protest that presents a compelling legal and factual argument.
- File the protest with the appropriate forum, which is typically the GAO or the Court of Federal Claims.
The following table provides a more detailed look at the types of evidence that can be used to support common protest grounds:
| Protest Ground | Supporting Evidence |
|---|---|
| Flawed Technical Evaluation | Evaluation worksheets that contradict the solicitation’s criteria, unsupported ratings, or a lack of documentation for the evaluation. |
| Unreasonable Price/Cost Evaluation | An agency’s failure to consider all relevant cost data, the use of a flawed methodology for price realism analysis, or a miscalculation of the most probable cost. |
| Unequal Treatment | Evidence that the agency assigned a weakness to the protester’s proposal for an issue that was also present in the awardee’s proposal but was not identified as a weakness. |
| Flawed Selection Decision | A source selection decision document that is conclusory, lacks a comparative analysis of the proposals, or is inconsistent with the evaluation record. |
The strength of a bid protest lies in the quality and specificity of the evidence presented to support its claims.
It is important to remember that the GAO gives great deference to an agency’s technical evaluation. Therefore, a protest that challenges the technical evaluation must be particularly well-supported with evidence of irrationality, unreasonableness, or a failure to follow the solicitation’s criteria. A successful protest can result in the agency taking corrective action, such as re-evaluating proposals or making a new award decision. In some cases, the GAO may recommend that the agency reimburse the protester for the costs of filing and pursuing the protest.
References
- Simmons, L. (2015, August 10). If You Want To Get Technical About It ▴ Top Protest Ground. Jackson Kelly PLLC.
- Wallace, J. C. (n.d.). Contract Award Protest Rulings. Defense Acquisition University.
- Becker & Poliakoff. (2018, August 15). What Are The Grounds For Bringing A Bid Protest?
- Johnson, B. W. Pomeroy, V. M. & Harris, L. M. (2025, February 3). GAO Annual Report Reveals Most Commonly Successful Arguments in Bid Protests.
- Vinson & Elkins LLP. (2021, May 18). In-House Counsel’s Bid Protest Playbook.
Reflection
Beyond the Protest a Strategic Reassessment
The decision to protest an RFP award is a significant one, with implications that extend beyond the immediate outcome of the procurement. Win or lose, the protest process can be a valuable learning experience, providing insights into an agency’s evaluation process and the competitive landscape. A bidder that carefully analyzes the reasons for a protest, whether successful or not, can use that knowledge to improve its proposal writing and bidding strategies in the future.
The protest process can also serve as a catalyst for internal review, prompting a company to re-examine its own processes for developing and pricing its proposals. Ultimately, the goal is not simply to win a single protest, but to build a more resilient and competitive bidding operation.
Glossary
Common Grounds
Technical Evaluation
Price Realism Analysis
Successful Protest
Unequal Treatment
Bid Protest
Flawed Technical Evaluation
Potential Protest Grounds
Source Selection Decision Document
