When Do I Have to Protest?

GAO PROTESTS

The Government Accountability Office (GAO) provides an independent review of agency contract awards. Thus, for offerors wrongly bypassed for a government contract, a GAO protest can provide an award.

To preserve one’s right to file a GAO protest, strict time periods must be followed. Thus, if a disappointed bidder or offoror is considering a GAO protest, immediate action should be taken.

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Agency Properly Rejected Otherwise Favorable Offer Because of Conflict of Interest

The GAO found that the agency properly rejected an offeror when the offeror would have had a conflict of interest in performing the contract.

In this case, the agency was seeking proposals from qualified independent contractors to review initial medicare payment determinations by MAC contractors.  MAC stands for Medicate Administrative Contractor.  The problem for the protester was that it was also the MAC contractor for a third of the region, meaning that it could be reviewing its own initial determinations.

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GAO Defines What Is A “Task Order” In Assessing Protest Jurisdiction

In this protest, the protester challenged the award to its higher priced competitor.  The agency argued that the GAO did not have jurisdiction to review the protest because the procurement involved a task order.  The GAO found that it did have jurisdiction, and it ruled in favor of the protestor on the merits.

In many instances, Congress has denied the GAO protest jurisdiction over the award of task orders.  However, a couple exceptions have developed whereby the GAO will accept jurisdiction over a task order award.

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Lack of Even-Handedness In Evaluation Leads GAO to Sustain Protest

The GAO found that a number of agency evaluation assessments were not supported by the record and indicated unequal treatment of offerors.

In this procurement, the agency conducted a competition among Federal Supply Schedule (FSS) contractors to establish a single blanket purchase agreement (BPA) for an automated Freedom of Information Act system.  Following an award to another competitor, the protester alleged unequal treatment in a number of evaluation conclusions.

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Protest Against Cancellation of Solicitation is Denied

The GAO denied the protest when the protester challenged the agency’s cancellation of the solicitation.  In a negotiated procurement, a contracting agency has broad discretion in deciding whether to cancel a solicitation, and the agency need only establish a reasonable basis for doing so.  A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs.  Here, the agency has set forth a facially reasonable basis for cancellation — i.e., that its technical needs have changed, increasing beyond what the contract award would have provided, and that the statement of work no longer reflects the government’s needs.

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Problems Found With Agency’s Price Realism Analysis

The GAO sustained a protest filed by two unsuccessful offerors that the agency did not conduct a proper price realism analysis.

In this procurement, the Request for Proposals (RFP) sought fixed-price proposals for computer support services for agency locations both in the U.S. and around the world.  The procurement was valued at $500 million. As part of the RFP, proposals were to be subject to a price realism analysis.

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