On November 21, the Government Accountability Office (GAO) denied an unsuccessful bidder’s protest, arguing that the terms of a solicitation were biased and that the awardee failed to comply with a mandatory solicitation requirement.
The decision offers important lessons that contractors should keep in mind when evaluating solicitations; submitting proposals; and evaluating whether and when to file a bid protest. Identifying potential protest grounds is invaluable and can mean the difference between the award of a contract and an unsuccessful proposal. We explore the two most salient aspects of the decision below.
The Procurement at Issue
On July 27, 2023, the Navy issued a proposal seeking commercial services to assist with the navigation of the USS Marinette, a littoral combat ship, through the Great Lakes. The procurement contemplated the award of a fixed-price contract for help on two missions in the region.
Crucially, the solicitation incorporated a “technical certifications” factor intended to assess each offeror’s “ability to demonstrate experience navigating the LCS Freedom Variant, or identical waterjet driven ships, in the Great Lakes while completing at least one transit of the associated locks and canals between Marinette, [Wisconsin] and Quebec City, Quebec within the last five (5) years, and prior completion of the Navy’s sponsored LCS course.” The solicitation also required offerors “demonstrate that they have competed at least two transits of the associated locks and canals between Marinette, [Wisconsin], Escanaba, [Michigan] and Quebec City, Quebec within the last five (5) years.”
In response to the solicitation, two offerors submitted timely quotations—HSV Consulting and Seasmoke. Following the Navy’s evaluation, HSV’s quotation was found to be technically unacceptable, and Seasmoke was subsequently awarded the contract.
Challenging Terms of Solicitation as Biased
Following the award, HSV protested it at the GAO. HSV first challenged the terms of solicitation, objecting to the requirement that offerors must evidence completion of “at least two transits of associated locks and canals between Marinette, Wisconsin, Escanaba, Michigan and Quebec City, Quebec within the last five (5) years.” HSV contended that this requirement “raises concerns of bias in the evaluation” and “is unnecessary for regulatory compliance, especially for a US Navy vessel.”
GAO quickly dismissed this challenge as untimely. Pointing to its timeliness rules, GAO held that “a protest based on alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of quotations must be filed before that time.” Here, since the deadline for quotations was August 14, the deadline for protesting the terms of the solicitation was similarly August 14.
Failure to Comply with Material Requirement of the Solicitation
HSV also argued that the awardee did not comply with a material requirement of the solicitation when it failed to provide proof it completed the LCS training course. The Navy conceded the awardee’s proposal failed to comply with the requirement but stated the requirement was inadvertently included in the solicitation, was “deemed ‘irrelevant’ to performing the contract, and that, therefore, the Navy had waived the requirement. The Navy also noted that it appeared HSV did not comply with the requirement.
GAO found that “[a]n agency may waive or relax a material solicitation requirement when the award will meet the agency’s actual needs without prejudice to the other offerors.” Where, as here, the protestor did not explain how it would have changed its quotation to make it more competitive, the protest ground should be dismissed.
Lessons to Glean
The HSV protest serves as a helpful reminder that under GAO regulations, a protest concerning “alleged improprieties in a Solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals.” 4 C.F.R. § 21.2 (although the Court of Federal Claims has no strict timeliness rules other than a six-year statute of limitations, challenges to the terms of a solicitation will be deemed waived if a challenge is not filed, whether at the court or elsewhere, prior to the deadline for proposal submission). Waiting until after the award is made to protest the terms or requirements apparent on the face of the solicitation is too late and will be quickly dismissed. For this reason, contractors should review solicitations carefully well in advance of proposal deadlines to determine whether the terms are ambiguous or contradictory, “unduly restrictive,” exclude a required provision or include a term that should not be there, fail to incorporate applicable small business regulations, or are otherwise objectionable. If a pre-award protest is called for, give yourself sufficient time to meet the pre-proposal filing deadline.
In addition, the decision illustrates the importance of demonstrating prejudice. It is insufficient to show that an agency made an error in its evaluation process. Instead, a protestor must demonstrate that the error negatively impacted its chance of award. In HSV, there was no evidence HSV’s proposal would have improved had the training requirement, which its own proposal seemingly didn’t meet, had not been included. The GAO found HSV’s quotation “‘was entirely reliant upon the resume and experience’ of its proposed mission consultant, and this proposed consultant would not have changed regardless of whether the course requirement was removed,” therefore there was no prejudice.
Overall, the HSV decision offers a useful example of GAO applying its timeliness and prejudice requirements to an award decision. Contractors should keep these lessons in mind when deciding whether to protest the terms of a solicitation or an award.