When protests are worth the battle

When protests are worth the battle

When talking about bid protests, there is constant debate about whether there needs to be reforms in light of the growing number of protests filed each year and — if so — what should those reforms look like. But also worth a hard look: the wasted time and taxpayer dollars of agencies that decide to fight a protest with clear merit.

Protesting contractor: Basic Overnight Quarters LLC, Wormleysburg, Penn.

Contracting agency: Department of State

Protest issue: Sometimes agencies are the ones to waste time and money

Decision: Sustained by the Government Accountability Office Oct. 9, 2012 (decision published Aug. 23)

Post-mortem: WDOS issued a request for proposal that informed potential offerors of its intent to award contract for long and short-term housing in the D.C. area. Of the eight proposals received, four were deemed non-compliant and the remaining two were awarded contracts: Worldwide Corporate Housing of Falls Church and National Corporate Housing Inc. of Herndon.

BOQ challenged the evaluation of its technical proposal with several protests grounds. Among the allegations were challenges to the evaluation of its corporate experience, past performance, plan of operation and quality assurance factors. According the BOQ, in evaluating its corporate experience and past performance, DOS assigned weaknesses unrelated to the evaluation criteria listed in the solicitation. The GAO stated that it was “unreasonable and inconsistent” to assign weaknesses for corporate experience and past performance based on “providing apartments in the future.” Likewise the GAO stated that it was unreasonable for DOS to assign a weakness under plan of operation, alleging that BOQ was not ready to fill all requirements, when “the solicitation does not indicate how many of these rooms must be available when the contract starts.”

Not only was BOQ assigned weaknesses for evaluation criteria not in the solicitation, the awardee, NCH “was not assigned a weakness” for the same proposed activity. According to the GAO, by assigning a weakness to one proposal and not the other, DOS “failed to treat offerors equally.” This was not the only example of unequal treatment. NCH was given a strength based on a DOS finding that prior contracts performed were large or similar to the solicited work. The GAO, disagreeing that the prior contracts were similar, noted that “it was unreasonable to award NCH a strength on the basis that [NCH] performed large contracts.”

One cannot comment on the frivolity of contractor protests without also discussing While not every award decision should be protested, some should — and some should also require a follow-on investigation to determine whether something more than error or incompetence led the government to make its award decision.