What Are the Most Common Grounds for a Successful Bid Protest against an RFP Award? ▴ Question

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Concept

An unsuccessful bid on a Request for Proposal (RFP) often feels like a definitive endpoint. The reality, however, is that the procurement process itself is a complex system with specific, mandated protocols. A bid protest is a formal challenge to a contract award, alleging that the contracting agency failed to comply with those protocols. It is a mechanism to enforce the integrity of the procurement system.

The most common grounds for a successful protest are not esoteric legal loopholes; they are fundamental breaches of the established rules of engagement. These breaches typically fall into a few core categories ▴ flaws in the solicitation itself, improper evaluation of proposals, and irregularities in the award decision. A protest is not merely an expression of disappointment; it is a data-driven assertion that the process was compromised.

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What Are the Core Principles of a Bid Protest?

At its heart, a bid protest is a challenge to the fairness and integrity of the procurement process. It is a mechanism that allows an interested party, typically a bidder who was not awarded the contract, to formally question the agency’s decision. The core principle is that the government must follow its own rules. These rules are designed to ensure a level playing field for all bidders and to ensure that the government receives the best value.

When these rules are broken, a bid protest can be filed to seek a correction. The success of a protest hinges on the ability to demonstrate a clear violation of procurement law or regulation and to show that this violation caused prejudice to the protester.

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The Anatomy of a Bid Protest

A bid protest is a structured, evidence-based challenge. It begins with the identification of a valid ground for protest, which must be more than mere disagreement with the agency’s decision. The protester must articulate a specific error or series of errors in the procurement process. This could be anything from a flawed evaluation criterion to an improper sole-source award.

The protest is then filed with the appropriate body, which could be the contracting agency itself, the Government Accountability Office (GAO), or the U.S. Court of Federal Claims. Each of these forums has its own specific procedures and timelines that must be strictly followed. The agency is then required to provide a detailed report responding to the protest allegations, and the protester has an opportunity to reply. The reviewing body will then issue a decision, which may result in the contract award being overturned, the solicitation being amended, or the protest being denied.

A bid protest is a critical oversight mechanism that holds government agencies accountable to the established rules of procurement.

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Common Grounds for a Successful Protest

Successful bid protests are typically based on a few common themes. These include situations where the agency failed to follow the evaluation criteria set forth in the solicitation, treated bidders unequally, or made an unreasonable award decision. For example, if the solicitation states that past performance will be evaluated in a certain way, the agency must follow that methodology for all bidders. If it deviates from that methodology, or if it applies it differently to different bidders, that can be a ground for protest.

Similarly, if the agency’s award decision is not supported by the evaluation record, or if it is based on a flawed or irrational analysis, the decision can be challenged. Protests can also be based on flaws in the solicitation itself, such as ambiguous or overly restrictive requirements that unfairly limit competition.

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Strategy

A strategic approach to a bid protest requires a deep understanding of the procurement process and the specific rules that govern it. It is a calculated, evidence-based endeavor that requires careful planning and execution. The decision to file a protest should be based on a thorough analysis of the strengths and weaknesses of the case, as well as a clear understanding of the potential costs and benefits. A successful protest strategy involves not only identifying a valid ground for protest, but also gathering the evidence needed to support that ground, and presenting that evidence in a clear and persuasive manner to the appropriate forum.

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Developing a Protest Strategy

The first step in developing a protest strategy is to conduct a thorough review of the solicitation and the agency’s award decision. This review should be focused on identifying any potential errors or inconsistencies in the procurement process. It is important to look for any instances where the agency may have deviated from the evaluation criteria set forth in the solicitation, or where it may have treated bidders unequally. It is also important to consider whether the agency’s award decision is reasonable and supported by the evaluation record.

If any potential grounds for protest are identified, the next step is to gather the evidence needed to support those grounds. This may involve requesting a debriefing from the agency, obtaining a copy of the successful bidder’s proposal, and conducting a detailed analysis of the evaluation record.

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Key Strategic Considerations

There are a number of key strategic considerations that should be taken into account when developing a protest strategy. These include the choice of forum, the timing of the protest, and the specific arguments that will be raised. The choice of forum is a critical decision, as each forum has its own unique procedures and standards of review. The timing of the protest is also critical, as there are strict deadlines for filing protests, and a failure to meet these deadlines can result in the protest being dismissed.

The specific arguments that will be raised should be carefully selected based on the strength of the evidence and the likelihood of success. It is often better to focus on a few strong arguments rather than raising a laundry list of weaker claims.

A successful protest strategy is built on a foundation of thorough research, careful planning, and a deep understanding of the applicable procurement laws and regulations.

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Pre-Award Vs Post-Award Protests

Bid protests can be filed either before or after the contract has been awarded. Pre-award protests challenge the terms of the solicitation itself, while post-award protests challenge the agency’s award decision. The strategy for each type of protest is different. Pre-award protests are typically focused on issues such as ambiguous or overly restrictive specifications, or flawed evaluation criteria.

The goal of a pre-award protest is to have the solicitation amended to correct the alleged flaws. Post-award protests, on the other hand, are focused on issues such as an improper evaluation, unequal treatment of bidders, or an unreasonable award decision. The goal of a post-award protest is to have the contract award overturned and to be given another chance to compete for the contract.

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Pre-Award Protest Strategy

A pre-award protest strategy should be focused on identifying and challenging any flaws in the solicitation that could put the protester at a competitive disadvantage. This could include anything from an ambiguous statement of work to an evaluation scheme that is unfairly skewed in favor of a particular competitor. The key to a successful pre-award protest is to file the protest as early as possible, before the deadline for submitting proposals. This gives the agency an opportunity to correct the alleged flaws before the competition is held, and it can save both the agency and the bidders a significant amount of time and money.

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Post-Award Protest Strategy

A post-award protest strategy should be focused on identifying and challenging any errors in the agency’s evaluation and award decision. This requires a detailed analysis of the evaluation record, including the agency’s evaluation of the protester’s proposal and the successful bidder’s proposal. The goal is to identify any instances where the agency failed to follow the evaluation criteria, treated bidders unequally, or made an unreasonable award decision. A successful post-award protest can result in the contract award being overturned, and the agency may be required to re-evaluate proposals or to issue a new solicitation.

Pre-Award vs. Post-Award Protest Strategies
Protest Type	Focus	Goal	Timing
Pre-Award	Flaws in the solicitation	Amend the solicitation	Before proposal submission deadline
Post-Award	Errors in the evaluation and award decision	Overturn the contract award	Within a specified time after the award decision

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Execution

The execution of a bid protest is a complex, multi-stage process that requires meticulous attention to detail and a deep understanding of the applicable rules and procedures. It is a process that can be fraught with challenges, and it is essential to have a clear and well-defined plan of action. The successful execution of a bid protest depends on a number of factors, including the timely filing of the protest, the thoroughness of the investigation, the persuasiveness of the arguments, and the effective management of the protest process.

The Protest Process

The protest process typically begins with the filing of a protest with the appropriate forum. This could be the contracting agency, the GAO, or the U.S. Court of Federal Claims. The protest must be in writing and must include a detailed statement of the grounds for the protest, as well as any supporting evidence. Once the protest is filed, the agency is required to provide a report that responds to the protest allegations.

The protester then has an opportunity to file comments on the agency report. The reviewing body will then issue a decision based on the written record. In some cases, the reviewing body may hold a hearing to take testimony and receive additional evidence.

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Key Steps in the Protest Process

Identify Grounds for Protest ▴ The first step is to identify a valid ground for protest. This requires a thorough review of the solicitation, the agency’s award decision, and the applicable procurement laws and regulations.
File the Protest ▴ The protest must be filed with the appropriate forum within the specified time limits. A failure to meet these deadlines can result in the protest being dismissed.
Agency Report ▴ The agency is required to provide a report that responds to the protest allegations. This report typically includes a copy of the solicitation, the protester’s proposal, the successful bidder’s proposal, and the evaluation documents.
Comments on Agency Report ▴ The protester has an opportunity to file comments on the agency report. This is an opportunity to rebut the agency’s arguments and to provide additional evidence in support of the protest.
Decision ▴ The reviewing body will issue a decision based on the written record. This decision may sustain the protest, deny the protest, or dismiss the protest.

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What Are the Most Common Reasons for a Successful Protest?

The Government Accountability Office (GAO) tracks the reasons for successful bid protests and publishes an annual report. According to the most recent report, the most common reasons for sustained protests are unreasonable technical evaluations, flawed selection decisions, and unreasonable cost or price evaluations. These three categories account for the vast majority of successful protests. This data provides valuable insights for both contractors and government agencies.

For contractors, it highlights the areas where agencies are most likely to make mistakes, and it provides a roadmap for developing a successful protest strategy. For government agencies, it highlights the areas where they need to improve their procurement practices to avoid protests.

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Unreasonable Technical Evaluation

An unreasonable technical evaluation is the most common reason for a successful bid protest. This can occur in a number of ways. For example, the agency may fail to follow the evaluation criteria set forth in the solicitation, or it may treat bidders unequally.

In one recent case, the GAO sustained a protest because the agency had assigned a weakness to the protester’s proposal for failing to include certain information, but had not assigned a similar weakness to the awardee’s proposal for the same omission. In another case, the GAO sustained a protest because the agency had evaluated proposals based on a criterion that was not clearly identified in the solicitation.

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Flawed Selection Decision

A flawed selection decision is the second most common reason for a successful bid protest. This can occur when the agency’s award decision is not supported by the evaluation record, or when it is based on a flawed or irrational analysis. For example, in one case, the GAO sustained a protest because the agency’s tradeoff decision was not adequately documented and appeared to be based on an arbitrary comparison of adjectival ratings rather than a qualitative assessment of the merits of the proposals.

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Unreasonable Cost or Price Evaluation

An unreasonable cost or price evaluation is the third most common reason for a successful bid protest. This can occur when the agency’s evaluation of a bidder’s proposed cost or price is not reasonable. For example, in one case, the GAO sustained a protest because the agency had determined that the protester’s proposed price was unrealistically low without considering whether the protester could reasonably perform the work at that price.

GAO Bid Protest Statistics (Fiscal Year 2024)
Reason for Sustained Protest	Percentage of Sustained Protests
Unreasonable Technical Evaluation	45%
Flawed Selection Decision	30%
Unreasonable Cost or Price Evaluation	15%
Other	10%

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The Role of Evidence

Evidence is the lifeblood of a successful bid protest. It is essential to have clear and convincing evidence to support each of the arguments raised in the protest. This evidence can take many forms, including the solicitation itself, the protester’s proposal, the successful bidder’s proposal, the agency’s evaluation documents, and any communications between the protester and the agency. It is also important to have a clear and well-organized presentation of the evidence.

This can be done through the use of exhibits, charts, and graphs. The goal is to make it as easy as possible for the reviewing body to understand the facts of the case and the merits of the protest.

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References

Whitcomb Selinsky PC. “Bid Protest Lawyer.” Whitcomb Selinsky PC, 2023.
Becker & Poliakoff. “What Are The Grounds For Bringing A Bid Protest?” Becker & Poliakoff, 15 Aug. 2018.
Johnson, Brett W. et al. “GAO Annual Report Reveals Most Commonly Successful Arguments in Bid Protests.” Holland & Hart LLP, 3 Feb. 2025.
“The Five Most Common Reasons for Winning GAO Bid Protests ▴ Part 1 ▴ Unreasonable Cost or Price Evaluation.” Government Construction Law Update, 26 Dec. 2019.
“GAO’s 2024 Bid Protest Annual Report ▴ Prevalent Reasons for Sustained Bid Protests and How to Avoid Them.” Infra Insight Blog, 17 Jan. 2025.

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Reflection

The decision to protest a contract award is a significant one, with potential implications for both the protesting company and its relationship with the contracting agency. A successful protest can be a powerful tool for ensuring a fair and competitive procurement process. An unsuccessful protest can be a costly and time-consuming exercise.

The key to making the right decision is a thorough understanding of the grounds for protest, a realistic assessment of the likelihood of success, and a clear-eyed view of the potential risks and rewards. Ultimately, a bid protest is more than just a legal challenge; it is a strategic business decision that should be made with care and deliberation.