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Successful bid protests require evidence and explanation, not mere allegations and speculation

In BNL, Inc., B-409450, B-409450.3, 2014 CPD ¶ 138, 2014 WL 1818046, the protester in a procurement for management, acquisition, and financial support to the Department of Veterans Affairs (VA) argued that the agency improperly evaluated the proposal of Strategy and Management Services, Inc. (SAMS), one of three awardees.

Initial protest

BNL’s initial protest challenged the agency’s evaluation of SAMS’ proposal relating to the firm’s proposed labor hours and workforce qualifications. In response to that protest, the agency produced the relevant portions of SAMS’ proposal consisting of the firm’s management methodology and price volume and SAMS’ technical evaluation.

Supplemental protest

After its receipt of this information, BNL filed a supplemental protest challenging the agency’s evaluation of SAMS’ proposal with respect to the firm’s proposed response to the performance work statement. Specifically, BNL argued that its review of the provided sections of SAMS’ proposal showed that it did not contain any details with respect to how SAMS would use function point analysis (FPA) to perform cost estimation.

The protester observed that the only details related to FPA in the provided portions of SAMS’ proposal were a chart referring to FPA as a function the firm would perform and a flow chart showing where FPA cost estimation fits into SAMS’ task-order-management scheme. Based on its review, BNL argued that the VA evaluated the offerors unequally because SAMS should have received the same significant weakness as did BNL.

VA’s response

The VA countered that BNL’s supplemental protest failed to set forth a detailed statement of the legal and factual basis of protest. The Government Accountability Office (GAO) agreed.

GAO evaluation

GAO first summarized the standards for legally sufficient grounds for protest. The comptroller general said that bid protest regulations—4 C.F.R. §21.1(c)(4) and (f)—require that protests include a detailed statement of the legal and factual grounds of protest and that the grounds be legally sufficient. This requirement contemplates that protesters will provide, at a minimum, either allegations or evidence sufficient, if uncontradicted, to establish the likelihood of the protester’s claim of improper agency action. Protesters must provide more than bare allegations; the allegations must be supported by some explanation that establishes the likelihood that the protester will prevail in its claim of improper agency action.

Bare assertions won’t suffice

Thus, bare assertions that an award was improper, with neither evidence nor explanation of the protester’s theory regarding the alleged violation, are insufficient to satisfy GAO’s requirements. Accordingly, unsupported assertions that are mere speculation on the part of the protester will not provide an adequate basis for protest.

GAO agreed with the agency that neither the management methodology section nor the price volume of SAMS’ proposal would—or should—address FPA or cost estimation in any great detail. As a result, BNL’s allegation that SAMS should have been assigned a weakness for only making passing reference to FPA and cost estimation in these sections of its proposal failed to establish any likelihood that the protester would prevail in its claim of improper agency action.

Neither will speculation

Further, to the extent that BNL’s challenge extended to the remainder of SAMS’ proposal, which was not produced by the agency, such an argument amounted to mere speculation. BNL made no claim to knowledge of the remainder of SAMS’ proposal. Nor did it make any substantive allegation as to its content. While GAO does not believe access to or knowledge of an awardee’s proposal is necessary to advance a sufficiently supported ground of protest (since GAO recognizes that protesters rarely, if ever, have access to proposals at the time they file a protest), the protester must provide some basis to support its allegation of improper agency action.

Protest dismissed

Because BNL provided no such basis, GAO dismissed the protest.

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Thursday, 05 December 2019

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