We have often said, “Do not protest unless the government violates a statute or regulation.” We mean it. Bid protests are rarely, very rarely, successful without showing a statutory or regulatory violation. So let’s take a look at the skeleton and circulatory system of a successful bid protest.
GAO says, it is fundamental that contractors should be advised of the basis on which their proposals will be evaluated. The Competition in Contracting Act (CICA) requires that contracting agencies state all evaluation factors and their relative importance in all solicitations. FAR also requires it. GAO will sustain a protest where contractors are misled as to how they will be evaluated. Likewise, GAO has consistently and often said contractors must be treated equally in the evaluation process. That is, the stated evaluation factors must be applied equally to all contractors.
There are 4 regulations in FAR Part 15 which the government must strictly follow.
1. FAR 15.304. This is the regulation stating the award decision must be based on the evaluation factors and significant sub factors set forth in the solicitation. Any deviation or unequal treatment among contractors is illegal.
2. FAR 15.305. This is a companion to 15.304 which makes it abundantly clear how contractors are to be evaluated. Any deviation from this regulation is illegal.
3. FAR 15.306. This section sets forth the rules on discussions (negotiations) with contractors. Once the decision is made to discuss (negotiate) proposals, the contracting agency must negotiate with all contractors within the competitive range and provide each contractor the opportunity to revise its proposal when discussions are concluded. It is illegal to favor one contractor over another, reveal one contractor’s solution to another contractor or reveals one contractor’s price or references to another contractor.
4. FAR 15.308. The source selection decision must be based on the independent judgment of the source selection authority (SSA) and it must be thoroughly documented to include the rationale for any business judgments and tradeoffs made or relief on by the SSA.
Frankly, as we’ve said before, if your complaint is bias or prejudice, we advise you not to protest. The protest system is set up to assure strict compliance with the rules. The system asks you to complain if the rules are violated. But do not just be a sore loser.
Finally, you must prove your case. How do you do it? You must see the complete agency administrative record. How do you get to see it? You must hire an outside consultant to help with the protest. You will not be allowed to see the complete agency file, but your consultant will be given access under a protective order. There is just no way around it. In order to see the complete file, you must retain outside help.