/>iSince the beginning of Fiscal Year 2024, the Government Accountability Office has published 35 decisions, but only two of which resulted in decisions sustaining the challenge. As contracting activities are busy awarding new contracts, it is important to follow the trends related to successful and effective protests as you consider filing your own bid protest, or as you defend your award as an intervenor. Below we dive into recent bid protest decisions and identify what won, what did not win, and why.
What Won
As discussed in our bid protest annual review article (available here), it is important to look beyond the numbers and focus on challenges that (generally) result in a successful or effective protest. The GAO “Effectiveness rate” includes sustained cases and those for which the agency took corrective action and reflects a higher percentage of success for protesters.
Two categories of successful protest arguments discussed in our previous blog are Improper Past Performance Evaluations and Flawed Best Value Analyses. In a decision issued on November 1, 2023, Vertex Aerospace, LLC, the GAO sustained a protest challenging the agency’s evaluation of Vertex Aerospace, LLC’s (“Vertex”) past performance and the agency’s best value tradeoff decision.[1] During the agency’s past performance evaluation, the agency determined one of the four contracts submitted by Vertex was not recent and then conducted a search using Vertex’s primary commercial and government entity (CAGE) code to search for additional contracts, which resulted in the identification of a NASA contract that the agency considered somewhat relevant. Despite its high ratings under most of the past performance references, Vertex’s proposal received a past performance rating of “satisfactory confidence” due to two marginal ratings on supposedly relevant contracts but the record demonstrated the marginal ratings were only from one somewhat relevant contract, the NASA contract. In addition to relying on the incorrect evaluation, the source selection authority’s (“SSA”) based his overall past performance assessment solely on a mathematical tallying of ratings under the references, without assessing whether the ratings were from relevant versus somewhat relevant contracts. GAO held that the agency’s evaluation was thus flawed and the agency’s tradeoff decision, which was based on the flawed past performance evaluation, was factually inaccurate and therefore prejudiced Vertex. As such, the GAO sustained this protest ground.
Another category of successful protest challenges are those where there is an improper technical evaluation. In RELX, Inc., the GAO sustained the protest challenging the agency’s award of a task order where the record demonstrated the awardee’s quotation failed to meet the requirements of the solicitation and improperly proposed “open market” items not available on the awardee’s Federal Supply Schedule (“FSS”) contract.[2] This procurement utilized a lowest priced technically acceptable source selection methodology. The solicitation was issued on a “brand-name-or-equal basis” and notified offerors that they would be required to provide either a brand-name LexisNexis software license or an equivalent, for which the solicitation identified the required salient characteristics. The agency only received two quotations. The protester challenged the agency’s contract award because the awardee’s quotation failed to meet several of the required salient characteristics listed in the solicitation, an argument with which GAO agreed. Additionally, the protester asserted the awardee offered open market items not listed on the awardee’s FSS contract. However, the record demonstrated that the protester also offered open market items and therefore neither offeror submitted a quotation that could satisfy the requirements of the solicitation. Therefore, the GAO sustained the protest and recommended the agency terminate the award, amend the underlying solicitation, obtain revised proposals, and issue a new task order.
Both of these decisions are similar to protest sustains last year, which demonstrates these trends will continue to be relevant in bid protests.
What Lost – Dismissed or Denied Protests
Even if the GAO finds deficiencies in the agency’s conduct during the procurement, a protester must also demonstrate that it was competitively prejudiced. To meet this threshold, a protester must demonstrate that, but for the agency’s actions, it would have had a substantial chance of receiving the award. This was the case in American Systems Group, in which the protester challenged the terms of a task order solicitation on the grounds that the services sought under the solicitation were beyond the scope of the underlying IDIQ contract.[3] Additionally, the protester argued the services should be competed as a separate procurement subject to FAR part 19, Small Business Programs, which would have benefited the protester due to its status as a Historically Underutilized Business Zone entity. The agency relied on three primary arguments: (1) the protester failed to demonstrate competitive prejudice because American Systems Group was awarded one of the underlying IDIQ contracts, (2) the value of the procurement is less than $25 million, meaning it was outside of GAO’s bid protest jurisdiction, and (3) the agency has discretionary authority to determine, as it did here, it would not be appropriate to apply the provisions of FAR part 19 to acquire the services sought under the solicitation.
GAO agreed with the agency and dismissed the protest. As an awardee of an underlying IDIQ contract, the protester was not barred from competing for the alleged out of scope task order. Additionally, the GAO found that even if the agency were to solicit these services under a separate procurement, the agency had discretionary authority to determine it would not be appropriate to apply the provisions of FAR part 19 and, therefore, the protester would not be entitled to a HUBZone preference. As such, the protester failed to demonstrate prejudice and the protest was dismissed.
Additionally, it is important to understand the GAO’s jurisdiction prior to filing a bid protest challenging an award. The GAO has jurisdiction regarding indefinite delivery, indefinite quantity (“IDIQ”) task order awards but there are minimum dollar thresholds to that jurisdiction, unless the protest asserts the anticipated task order is outside the scope, time period, and maximum value of the IDIQ contract. The minimum dollar threshold for Department of Defense task orders is $25 million and $10 million for civilian agencies. Additionally, the GAO has limited jurisdiction related to Other Transaction Authority awards, in which the GAO will only entertain protests challenging the propriety of the use of OTA filed before the date set for receipt of initial proposals.
In Lunar Resources, Inc., the protester challenged the agency’s award of a Funded Space Act Agreement pursuant to the agency’s Other Transaction Authority.[4] The protester conceded that the agency’s points regarding dismissal were valid but “based on its knowledge of alleged fraud and misrepresentation by Blue Origin, protester felt a legal and moral obligation to protest NASA’s award of a Tipping Point FSAA to Blue Origin.” The GAO reviewed its protest jurisdiction and reiterated it generally does not have jurisdiction to review protests challenging the award or solicitations for Other Transaction Agreements because they are not procurement contracts. GAO also noted, however, the exception to this general rule, which “is a timely, pre-award protest alleging the agency is improperly exercising its OTA to avoid using a procurement contract.” Because the protester did not assert arguments to satisfy this exception, the GAO dismissed the protest for lack of jurisdiction to consider the protester’s allegations.
Conclusion
With the start of FY 2024, GAO’s decisions have not deviated from its prior decisions. In order to maximize your chances of success when protesting or defending, it is critical to understand the characteristics of successful and unsuccessful protests.
FOOTNOTES
[1] Vertex Aerospace, LLC, B-421835, B-421835.2, B-421835.3, Nov. 1, 2023, 2023 WL 8060261.
[2] RELX, Inc., B-421597.2, B-421597.3, Nov. 17, 2023, 2023 WL 8120120.
[3] American Systems Group, B-421828, Oct. 26, 2023, 2023 WL 7548220.
[4] Lunar Resources, Inc., B-421936, Nov. 14, 2023, 2023 WL 7548222.
