How To Win a Bid Protest, Part 3: Drafting a Winning Protest
The GAO attorneys and Court of Federal Claims judges who hear bid protests are diligent and smart. They are skilled at reviewing a record to determine whether an agency acted reasonably. But they can still be influenced by good advocacy. Knowing which types of challenges are most persuasive and how to present them well is the key to presenting a strong protest.
1. Focus on the agency’s objective errors rather than its subjective judgments. When we ask clients why they think an award decision was wrong, they usually start by listing concerns with the agency’s technical and programmatic judgments. They will say, for example, that the agency misjudged the offerors’ relative abilities to perform, that it undervalued their proposal’s benefits, or that it paid too much attention (or too little) to price.
But these are usually the least fruitful areas to challenge. Both GAO and the COFC hold it is the agency’s job — not theirs — to make subjective judgments regarding the merits and value of proposals. They defer to the agency’s assessment of whether a proposal meets its needs at an appropriate cost. GAO and the COFC are inclined to deny these challenges as mere disagreements with the agency’s judgments.
Instead, focus on objective errors. Did the agency fail to follow the RFP’s instructions, apply the wrong evaluation criteria (or criteria not found in the RFP), misread your proposal, or treat offerors unequally? Did the agency fail to follow the FAR, conduct discussions incorrectly, fail to consider potential conflicts of interest, or fail to make the findings required for your type of award? Did the agency ignore information in your proposal? Objective errors like these are easier to demonstrate, and GAO and the COFC are more comfortable overruling agencies on these grounds.
2. Be selective. Your initial protest must be comprehensive so that you don’t waive any challenges or give the agency an excuse to avoid producing the entire record. But that does not mean you should throw in the kitchen sink. The most persuasive protests focus on a small number of arguments and a handful of compelling themes that tie these challenges together. Padding your protest with complaints about every aspect of the award risks burying your strongest points. It can also undercut your credibility: It is easier for GAO or the COFC to believe that you are desperately searching for arguments than it is for them to believe that the agency got every single aspect of the procurement wrong.
It is true that your comments on the agency report will give you an opportunity to refine (and perhaps pare back) your initial protest arguments. But GAO and the COFC will have already formed impressions by then. A focused protest conveys that you have legitimate concerns and are not simply throwing everything against the wall to see what sticks.
3. Stay away from allegations of bias. Frustrated clients often feel they lost an award because someone at the agency was unfairly biased. No matter how sincerely you believe there was bias or bad faith, keep it out of your protest. Such claims virtually never win. GAO and the COFC start with the strong presumption that agencies act in good faith. Overcoming that presumption requires “well-nigh irrefragable proof” — hard evidence that conclusively proves bad faith and cannot be explained any other way. Situations that meet this standard are truly rare: for example, where an agency procurement official has already been convicted for conflicts of interest and steering awards to a favored competitor. Since allegations of bias virtually never carry the day and undercut your credibility, leave them out.
4. Keep your tone measured. Thunderous, outrage-filled protests tend to deflate once the agency produces the record and explains the reasoning behind its actions. If you overstate your arguments and the facts do not bear them out, your credibility suffers. You also risk offending your government customer.
Drafting a protest is an art that requires substantive knowledge, judgment, writing skills, and finesse. Experienced counsel know which arguments are most likely to win and how best to frame them.