This post is the second 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. Previously, in Part 1 of this series, we discussed the importance of making the most of your debriefing. Today, in Part 2 of the series, we discuss why its important to frame initial protest arguments with the big picture (obtaining information necessary to identify winning supplemental protest arguments) in mind.
In addition to arguments raised in the initial protest filing, a protester may file supplemental protest arguments based on new information learned during the course of the protest. A supplemental protest argument must be filed within ten days of when the protester knew, or should have known, of the basis for the supplemental protest argument. Finding and filing viable supplemental protests is a huge driver of your chances of succeeding at GAO. In fact, a recent study showed that the odds of a protester having its challenge sustained by GAO nearly double when a protester files supplemental protest arguments. So, filing strong supplemental protest arguments significantly increases your chances of winning a protest. What many protesters do not realize is that the key to finding a winning supplemental protest arguments starts with how you frame your initial protest arguments.
Supplemental protest arguments are most commonly discovered by the protester’s counsel when reviewing the source selection record produced with the agency report (usually 30 days after the initial protest filing). However, the agency will rarely produce the complete source selection record with the agency report. GAO only requires the agency report to include portions of the source selection record relevant to specific arguments raised in the initial protest (which is a major difference between the U.S. Court of Federal Claims and GAO). In other words, if you protest the technical evaluation but not the past performance evaluation, GAO is unlikely to require the agency to produce documents pertaining to the past performance evaluation. Similarly, if you protest your technical evaluation, but not the technical evaluation of the awardee, GAO is unlikely to require the agency to produce the awardee’s technical proposal. As a result, when drafting initial protest arguments, it is important to frame/raise protest arguments in a way that makes relevant as many aspects of the evaluation as possible. That way the agency will be forced to produce a broader version of the source selection record.
That being said, your initial protest arguments must at least be viable, i.e., not wholly speculative. If the arguments are completely speculative, they may very well be summarily dismissed. When evaluating whether to include a protest argument in your initial protest, so long as the argument is viable, the fact that it might not ultimately be a winning argument is of much less importance at the initial filing stage (though, as we will discuss a later post in this series, losing arguments should eventually be voluntarily withdrawn). While this may seem absurd, it is unfortunate quirk of GAO’s bid protest regulations and procedures (not present at the Court of Federal Claims) that forces protesters to file and frame initial protest arguments in this manner.
Because finding viable supplemental protest arguments is such a major factor to winning bid protests, it is critical to file and frame your initial bid protest arguments to force the agency to produce as much of the source selection record as possible.