In the world of GAO post-award bid protests, there are certain arguments that are particularly prevalent amongst sustained protests (such as the failure to follow the solicitation evaluation criteria, inadequate documentation of the source selection decision, unequal treatment of offerors, and unreasonable price or cost evaluation), and there are other arguments that while less prevalent are by no means uncommon amongst sustained protests (such as unreasonable consideration of affiliate experience/past performance, and lack of meaningful discussions). However, there is one particular protest basis that is so rarely sustained it could reasonably be considered the “flying pig” of sustained protests at GAO — a protest challenging an affirmative determination of the awardee’s responsibility (not related to a definitive responsibility criteria). Yet, this past week GAO sustained a bid protest on this very basis (FCi Federal, Inc., B-408558.4, et al., October 20, 2014).
How rarely does GAO sustain a protest challenging an affirmative determination of responsibility? This author could only locate three other protests that have been sustained by GAO on this basis since 2003. During that period over 850 protests were sustained by GAO, meaning this protest argument accounts for less than 1% of sustained protests over the past 11 years!
Although rarely seen, the FCi Federal decision is unlikely to open the flood gates to protests on this basis. First, GAO’s protest regulations (4 CFR 21.5(c)) specifically limit GAO’s review when considering protests challenging affirmative determinations of responsibility. As explained by GAO:
As a general matter, our Office does not review affirmative determinations of responsibility by a contracting officer. …. We will, however, review a challenge to an agency’s affirmative responsibility determination where the protester presents specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible.