Your team has been scouting Sam.gov, Vulcan, and the ARC for months. You’ve finally found an opportunity that’s perfect for your unique technology and worked hard on what you believe is a winning proposal. Then the other shoe drops–you’ve lost. Worse still, the USG debrief isn’t helpful, wasn’t clear, or they weren’t required to provide you any feedback at all. What’s a small business to do?

It is very common for companies to be afraid to protest because they do not understand the process or are worried about damaging their reputation or relationship with the USG. And it’s true, the USG acquisition world is a large space in terms of dollars spent and activity. However, in terms of people, it can be very small. Military members move between offices, as do many civilian acquisition professionals. People in the space may have gone to school, training, or conferences together, and stay in touch to share professional lessons learned, End-of-Fiscal-Year memes, or frustrations with “certain” companies. 

Frivolously protesting without a specific, legitimate reason can damage your reputation and the relationships with USG members that your company has worked so hard to cultivate. One of the most egregious examples of this is Latvian Connections, a company that was banned from protesting twice by the GAO due to the egregious number of nonsensical protests they filed, totaling 150 in 2016 alone [1]. Latvian Connections became infamous in the USG contracting community as a serial protester that attempted to change the acquisition process by filing aggressive and unsubstantiated protests with the GAO over a period of several years, none of which were upheld and despite a history of winning very, very few contracts. 

To ensure you aren’t frivolously protesting, verify that you understand and have assessed the three basic rules of protests. 

1. First, consider the legitimacy and substantiation of your protest's basis. Can you confidently support the grounds for your protest? Let’s examine a real-world example: Company A wants to protest because “they know they had the lowest price.” Firstly, was the selection of the lowest price explicitly stated as the award criterion by the USG? Secondly, can the claim of having the lowest price be validated? If the source selection allowed for non-price factors to be weighted more heavily than price, and/or if you cannot substantiate a claim of having the lowest price, it’s likely not worth protesting. Consider some of the most common reasons protests are sustained by the GAO: unreasonable technical evaluation, flawed selection decision, and unreasonable cost or price evaluation [2], when evaluating and crafting your argument.
2. Timeliness is another crucial factor in the protest process. Is your protest filed promptly? The timing of your action depends on the jurisdiction where you submit your protest. Filing beyond the allowable time frame, once the protester became aware or should have become aware of the grounds for protest, may result in instant dismissal and unproductively annoying the USG.
3. Lastly, before proceeding with a protest, it's essential to determine where you are filing. Will you submit to the agency or file with the GAO? Each option carries its own advantages. Choosing the agency route may allow the government team to address any issues internally, potentially salvaging relationships and allowing them to save face. Alternatively, filing with the GAO brings in an impartial third party with expertise in bid protests, reducing the risk of bias or attempts to conceal errors. (Remember to follow specific agency procedures tailored to the awarding agency's process, and consult the GAO FAQs for additional guidance [3].)

Once you’ve determined that you have a legitimate basis for protest (often in coordination with a GovCon specialist or an attorney experienced in bid protest—reach out if you need a referral), are within the time window, and have a rationale for where you want to protest and why, it is worth considering the potential second and third-order effects of protesting that you may or may not be able to witness. In other words, what will this do to your relationship with the KO, TPOC, or COR?

My advice is always to convey to the USG that you are considering a protest, which may be difficult depending on the situation. If you are considering protesting a sole-source award to a competitor, you can typically communicate directly with the KO, and they will usually respond quickly if you use language that indicates you’re considering taking action. Conversely, if you are considering protesting an AFWERX TACFI decision, it may be more difficult to forecast your intentions, or even get a response from the org box quickly enough to risk waiting on filing your protest.

If a client has a legitimate cause and has made all reasonable attempts to forecast their intention to protest without receiving a reasonable or timely response, I always encourage them to protest. However, before making a final decision, it’s worth asking yourself what your goal is in protesting. Realistically, a protest can force the USG to reconsider its competition methodology—changing a sole source into a competitive selection, or a full and open competition into a small business set aside—or to go back and reassess if the competition was conducted fairly and in accordance with the solicitation. Even if your protest is sustained, it doesn’t mean you will automatically be the winner. Most likely, the USG will go back and reassess the evaluation, or may even cancel and recompete the entire effort. Your company and its offering will still have to stand on its own merit, including price, technical capability, and other factors deemed relevant by the USG.

As a former government Contracting/Agreements Officer, I believe in accountability. Source selections are difficult, and none are perfect. But our system is founded on the concept of checks and balances, and protests are an important piece of that function for the acquisition community. Furthermore, it is notoriously (and demonstrably—[4]) difficult for small businesses to enter the GovCon space, and I believe that small businesses should unabashedly use all tools available to them—goodness knows the primes will. Will the KO be upset that you filed a protest? Of course! It’s more work and it calls into question the job they did, which no human enjoys. However, a good KO will own it if they made a mistake, and oftentimes will own it if someone on their team made a mistake, and will learn from it. The ones that blame the company are not worth worrying about. Lastly, not protesting is not going to earn you a favor in the future. So you can choose not to protest and definitely not win, or you can file a legitimate, well-crafted protest and avail yourself of the protections the acquisitions system offers, and have a chance of being fairly considered for an award. The latter makes everyone better, and anyone in Government that chooses to blame the small business would not have been an ally had you not protested at all.

It is important to note that oftentimes merely forecasting your consideration of filing a protest or filing the protest itself may result in the KO choosing to take action on their own. Per the GAO, “a significant number of protests filed with their office do not reach a decision on the merits because agencies voluntarily take corrective action in response to the protest rather than defend the protest on the merits.” But also be warned, “Agencies need not, and do not, report any of the myriad of reasons they decide to take voluntary corrective action.” ([5])

Last thoughts—I have both firsthand and secondhand experience with the frustration of losing a SBIR competition. Because SBIRs are often solicited via BAAs and CSOs, the rules for evaluation and debrief are different from more traditional methods of source selection, and their lack of transparency can often create suspicion. In these cases, subject to my above caveats around legitimacy, timeliness, and professionalism, I believe these are worth protesting or contacting leadership members or congressional representatives. This may sound unfair, and for my friends in the SBIR/STTR offices who are vastly overworked and under appreciated, I hope you hear me out. With new innovation authority comes a higher level of scrutiny from the old guard and frozen middle, which means you have to operate at a higher standard. Is this fair? Not really, but it’s factual. For every company that feels slighted or every award that seems haphazard or illegitimate, critics of innovation or the utilization of small businesses gain a foothold. The only way to combat this is dedicated transparency and ruthless commitment to feedback and iterative change. Not all of it will be actionable. Not all of it should be seriously considered, but with the number of acquisition professionals in the upper echelons of the Pentagon that are still unconvinced of the need to spend time on innovation or small business engagement, legitimacy is critical.

Bottom line—stick up for yourself and use the system when appropriate. However, for companies that don’t read solicitations, or submit poorly thought out or articulated proposals, please save your stamp (metaphorically) so as not to clog the system for those that deserve its protections.

References:

1. GAO Decision Matter of: Latvian Connection LLC--Reconsideration, File: B-415043.3, November 29, 2017, [PDF] Retrieved from: www.gao.gov/assets/b-415043.3.pdf
2. Comptroller General of the United States. (October 26, 2023). GAO Bid Protest Annual Report to Congress for Fiscal Year 2023, B-158766. [PDF] Retrieved from: www.gao.gov/assets/870/862404.pdf
3. GAO FAQs page on Bid protests, [Web page] Retrieved from: https://www.gao.gov/legal/bid-protests/faqs
4. United States Government Accountability Office. (October 2021). SMALL BUSINESS CONTRACTING: Actions Needed to Implement and Monitor DOD's Small Business Strategy. [PDF] Report to Congressional Committees. Retrieved from: https://www.gao.gov/assets/gao-22-104621.pdf
5. Comptroller General of the United States. (October 26, 2023). GAO Bid Protest Annual Report to Congress for Fiscal Year 2023, B-158766. [PDF] Retrieved from: https://www.gao.gov/assets/870/862404.pdf