In FY 2016, there were 2,789 bid protests filed at the Government Accountability Office (“GAO”) challenging federal procurement decisions. In approximately 46% of these protests, the protester obtained some or all of the relief it was seeking, either through the protest being sustained by GAO, or through the federal agency taking voluntary corrective action in response to the protest. However, many protests are not successful, and are either denied or dismissed by GAO. Of all protests filed, approximately 19% were dismissed due to procedural or jurisdictional defects. And, of the bid protests decided on their merits, approximately three-quarters were denied.
Why are so many protests dismissed or denied by GAO? Frankly, in many cases a protest is lost because the protester, or its outside counsel, fails to take the fundamental steps necessary to enhance its chances of winning the protest.
This post is the first in a multi-part series discussing the fundamental steps that protesters (and their outside counsel) can take to enhance their chances of success at GAO. Today, we discuss how contractors can use the debriefing process to enhance their chances of success at GAO.
Make Your Debriefing Count
If you are seriously considering a bid protest, you need to take full advantage of the debriefing process. During the debriefing you should keep two main goals in mind.
First, because a purely speculative protest arguments will usually be summarily dismissed by GAO, if you suspect something is wrong with the evaluation you need to obtain some information during the debriefing (and it does not have to be much) that you can use to support that suspicion in a protest filing.
Just as important is the second goal, obtaining information that allows you to raise viable protests arguments concerning as many aspects of the evaluation as possible. As we will discuss in a later post in this series, the more elements of the evaluation you can challenge in your initial protest, the wider the scope of source selection documents that the agency must produce in repose to the protest, and a broader production gives you a greater chance of finding and asserting a winning supplemental bid protest argument. The key with the initial protest is not always to assert the winning argument, but rather to assert viable arguments (which you may decide to withdraw later in the protest) that lead to broad document production and thus the discovery of winning supplemental protest arguments. The information you obtain at a debriefing is key to identifying a broad range of viable initial protest arguments.
To best effectuate these two goals, contractors need to come to a debriefing prepared, organized and educated. This cannot be emphasized enough. Studying the evaluation criteria in advance is key, as you will want to make sure to ask questions at the debriefing that elicit information regarding each element of the evaluation. You need to thoroughly study the materials and organize your notes and documents in advance, as you will not have time to be search aimlessly through the RFP and your proposal during the debriefing. It usually helps to create a chart that you can bring to the debriefing that has a row for each evaluation factor and sub-factor, and a column that summarizes the evaluation criteria and submission requirements for each criteria (i.e., RFP section L & M), a summary of what you proposed for that factor, and a list of questions you might ask during the debriefing concerning that factor. Because debriefings move so quickly, its also important to bring an extra person to the debriefing (if oral or in-person) that is there solely to take notes.
Also important is knowing common viable protest arguments, as knowing the arguments your can make will help frame the questions you ask during (or before) the debriefing. While it is generally not a good idea to bring your outside counsel to the debriefing (there are some limited exceptions), it is a good idea to get outside counsel (who knows the common viable protest arguments) involved in advance of the debriefing to assist in developing a successful debriefing strategy.
For more tips on how to make your debriefing count, check out this presentation.