Government Contracts Monitor

When Hiring Experienced Protest Counsel May Help...

August 19, 2014

All businesses work to identify efficiencies and lower costs wherever possible. In some cases, however, choices made in pursuit of this laudable goal can lead government contractors to forego important assistance that could save them more money in the long run. It’s always difficult to read between the lines of a Government Accountability Office (GAO) decision, but the protestor’s decision not to hire outside counsel in the recent protest of KSJ & Associates, Inc. may be such a case. B-409278.

This protest involved the award of multiple ID/IQ task order contracts under a Navy Request for Proposal (RFP) for a broad range of analytical services. The RFP provided for awards to be made on a best-value basis considering technical capability, past performance, small business participation and cost/price.

Twelve offerors responded. The agency’s source selection evaluation board prepared a consensus evaluation report identifying strengths, weaknesses and deficiencies in the proposals. The source selection authority reviewed the technical ratings and risk assessments, as well as the tradeoff analysis and award decision justification, and identified the seven offerors offering best value to the government. This list did not include KSJ. After learning of the award decision and receiving a debriefing, KSJ protested, raising a number of arguments, none of which were successful.

That the GAO rejected all KSJ’s protest grounds is not unusual (GAO protests are lost more often than not). But the reasons the various grounds were rejected suggest that having experienced protest counsel may have increased KSJ’s chances of success. This is particularly true given the fact that outside counsel are routinely admitted to GAO’s protective order and, as a result, have access to detailed information about a procurement (including evaluation and source selection material) unavailable to in-house counsel or executives. This information can be vital to understanding the strengths and weaknesses of a protest – and to pursuing the protest accordingly.

KSJ raised several grounds of protest. For example, it challenged two technical capability weaknesses assigned to its proposal. But when the Navy filed its response to the protest – setting forth the detailed defense of its technical evaluation of KSJ’s proposal – KSJ failed to provide any substantive rebuttal. As a result, GAO dismissed the protest ground as abandoned. Perhaps there was no substantive response that could be made based upon the facts, but what’s more likely is that outside counsel – having access to the full agency record – would have been able to identify and frame a responsive argument.

This protest also included allegations that the agency impermissibly compared KSJ’s proposed costs to an independent government cost estimate. This protest ground was dismissed as untimely because, while based on facts learned through the debriefing, it was not raised until KSJ’s comments in response to the agency report. While having protest attorneys involved does not guaranty timelines, experienced protest counsel are more likely to identify and timely raise arguments based on the debriefing.

To be clear, even experienced government contracts attorneys offer no silver bullet. Protests can be difficult to win, even with what seems like an army of lawyers. Sometimes the facts and the law are simply not there. This case may have been one of those times – and KSJ’s decision to go it alone without an outside attorney may have been rational based on the circumstances. As a general matter, however, outside protest attorneys offer a number of valuable benefits to contractors in the protest context and can represent a good investment. In addition to serving as an advocate with access to protected information (and the ability to use it to the contractor’s advantage), protest counsel bring their subject matter expertise and experience to bear on identifying and crafting the strongest protest grounds possible and, equally important, on helping disappointed bidders recognize when a protest is not a viable, cost-effective option.