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Competitive prejudice—an essential element for a winning bid protest

On October 31, 2014, the Government Accountability Office (GAO) denied three protests by companies bidding on providing information technology required by the U.S. Army Materiel Command.

The GAO’s decision is informative on several fronts. But this posting addresses how the GAO denied one protester’s action because the protester did not suffer competitive prejudice. After being disqualified from the competitive range in response to a request for proposal (RFP), the protester argued that the agency improperly evaluated the protester’s past performance on several grounds. Those grounds included the agency’s—

  • Finding that some of the protester’s past performance was not relevant.
  • Insufficiently attempting to contact certain of the protester’s past-performance points of contact.

The GAO ruled that the protester failed to show it was prejudiced by the agency’s decision as to past performance because, even if the GAO had agreed with the protester that its past performance should have been rated higher, the protester’s mission-support rating of acceptable (which it did not challenge) nevertheless disqualified the protester from the competitive range.

As the GAO has stated in many of its decisions (including this one), competitive prejudice is an essential element of a winning bid protest. And where the protester fails to demonstrate prejudice, the GAO will not sustain the protest. In certain decisions, the GAO has restated the requirement as follows: The GAO will deny a protest “unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award” (emphasis added).

The protesters were Presidio Networked Solutions, Inc., Mercom Corporation, and MicroTechnologies, LLC.

What does this mean for bid protesters?

Keep in mind the GAO will not independently evaluate proposals. It only reviews the agency’s decisions to make sure they are consistent with the terms of the solicitation, procurement law, and procurement regulations. In this case, all bidders who had only an acceptable mission-support rating were eliminated from the process. So no competitive prejudice.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.


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Monday, 19 November 2018

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