Defining your company as an interested party prior to a protest

Defining your company as an interested party prior to a protest

In order to prevail, a protestor must show that it was prejudiced not only in relationship to the winning offeror, but to all offerors ahead of it in. That is a daunting task, and one worth considering before a bid protest is ever filed with the GAO.

Protesting contractor: CACI International Inc., Arlington

Contracting agency: Defense Advanced Research Projects Agency (DARPA)

Protest issue: Whether technical aspects of a proposal matter more than price, and what defines an interested party.

GAO decision, Feb. 28, 2012: Denied in part, dismissed in part.

Post-mortem: Having ranked the same as the winning bidder in the technical aspects of the proposal but less competitive in price, CACI claimed its rating was too low and that the winner – a small business – was too high.

But simply disagreeing with the agency’s judgment is not good enough, according to the GAO. This case highlights what I wrote last week: a proposal must balance the technical proposal with the price. Here CACI proposed a price that was more than $20 million higher than System High. When DARPA did not justify paying a higher premium, CACI had little choice but to protest the evaluation of System High’s technical approach being equal to theirs.

Another interesting aspect of this case is GAO’s determination in one part of the protest that CACI is not an interested party. According to the law, a protesting party must be “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract.” In this case there was a third, equally rated offeror that ranked more competitive than CACI in price. Even if CACI’s complaints were correct and System High was rated too high, the company still would not have been next in line for the win.