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Bid Protests: Whose Fault Are They? (Take II)

It is not always government’s fault.

This blog is the second in a two-part series on fault in bid protests.

Last month, I focused on the need for increased training of government evaluators and government fault in precipitating protests. But, contractor conduct also must be considered. Of course, with limited exceptions, all protests originate with disappointed bidders, so on the surface, all protests are the fault of contractors. But how did the contractor find itself with the need to protest?

A core problem is the contractor’s own mistake. A simple illustration is the late proposal. It’s hard to believe, but there are scores of Government Accountability Office (GAO) protest decisions and court decisions on the topic of late proposals. So much litigation arose that the court forced the GAO to change the law. Eventually the court devised a bright line rule—late is late—but lack of proper contractor organization and sound proposal management is a top culprit in protests.

Another contractor-induced protest ground is the unbalanced bid. Here the contractor tries to game the pricing on option years or contract line item numbers with the predictable result of drawing a protest by the competitor. Hundreds of decisions have been made on this issue alone.

A variation on this theme is the unrealistically low bid. If the solicitation lacks language stating that the proposal will be evaluated for price realism, some contractors take this as a license to bid a ridiculously low price. On a fixed price negotiated procurement, the government is very tempted to make award if it feels performance risk can be controlled. Almost automatically, this triggers a protest.

Protests of competitive range exclusions are another mainstay, but most of these can be traced to contractors failing to carefully prepare their proposals in accordance with the request for proposals (RFP).

Whether by intention or through mistake, contractor conduct is as much a cause of protests as government error. Some would say a pox on both houses.

Al Krachman, Esq., is a partner at Blank Rome LLP.