The value of protests tends to be a point of contention, especially when it comes to government contracts. If a party interested in a government contract believes that an agency has violated procurement law or regulation in a solicitation for goods or services, the award of a contract, or the intended award of a contract, it has the right to challenge the decision through a formal bid protest. But, does it ever payoff (for vendors) to conduct such protest? That depends on your end goal.
It is important to remember that the bid protest process is intended to be a checks and balances system. The ultimate goal is to ensure that government procurements are completed using the highest level of integrity – within the rules, regulations and statutes set forth for taxpayer-purchased goods and services. As such, the most effective bid protests are those that are legally sufficient and procedurally sound. Yes, you can use bid protests as an opportunity to “express dissatisfaction with the solicitation or award process”, or even to “complain about losing the competitive process.” However, it is going to be difficult to change a bid outcome if you claim agency bias against your company without evidence to support the objection – no matter how disappointed you may be in the contract award decision.
The word “fairness” comes up quite a bit during vendor solicitation or contract award objections. In fact, the majority of protests are submitted due to concerns of prejudice against certain contractors or favoritism towards others. But, they often lack hard, legally-acceptable evidence to support such allegations. Does that mean that such protests are not viable? Not necessarily.
As many state procurement officials noted in a NASPO-sponsored survey a few years back, bid protests provide “a fair process and a real check on flawed or anticompetitive awards.” Even if the protest outcome does not equate to a change in award decision, the process requires agencies to honestly evaluate their competitive processes and, many times, make improvements to prevent ambiguity or missteps the next time. In other words, bid protests often affect real, and positive change no matter the outcome.
The impact of your protest depends on whether or not you can prove that the government agency clearly legally violated the rules set forth for the procurement process or used unfair mechanisms for evaluating bid proposals. Remember, contract awards made using a loophole may still be legally binding and “fair” awards, even though they were based on a technicality. At the same time, vague solicitations may still be viable per minimal government buying standards. In other words, it is important that you can demonstrate agency predilection for another business, or process breakdown, when initiating a protest – especially if your hope is that the contract will be re-awarded to your company. That requires you to thoroughly understand the procurement process and policies.
The best way to confirm the agency’s justification for its solicitation structure or contract award decision is to participate in the standard post-award debriefing. This allows you to inquire about who won and why. It also allows you to understand why they scored your proposal a certain way in comparison. It may be that you provided the lowest price but the agency gave more weight to past performance or proven technical expertise.
Take advantage of government transparency requirements and request the feedback you are entitled to as a vendor participating in the government bid – and bid protest – process. Even if the outcome is not in your favor, the insights you receive will help you better understand the government procurement process and, thus, prepare better bid responses in the future.
If you’d like more information on bid protests, there are resources available through the GAO (federal level), NASPO (state level) and NIGP (local level). You can also consult with legal advisors who specialize in government contracting matters.