Interested Party. To successfully protest, a protester must be an "interested party" – an actual or prospective offeror whose direct economic interest would be affected by the award or failure to receive the award (CW Govt. Travel, Inc.). A protester is not an interested party if it would not be in line for award if the protest is sustained. Hence, exclusion from the competitive range (OMV Med Inc.) or failure to submit a proposal (Interproperty Invs. Inc.) is grounds for exclusion. A third ranked bidder was considered an "interested party" though a second ranked one was next in line since the protestor claimed its proposal was improperly evaluated and it should have received a higher rating (Systems Integration & Research, Inc.).

Bases for a Protest. A protester need not prove it would have won the award (Acepex Mgmt. Corp) but only that it had a "reasonable possibility" of winning but for the agency’s actions (Metro Mach. Corp.) A protest asserting failure to hold discussions was not sustained because even though such procedural steps were not appropriate, it was apparent the protester could not have improved its proposal enough to be in contention for award (Charleston Marine).

Even though an agency has broad discretion the courts have set forth the conditions for overturning an award. Decisions may be reviewed for reasonableness, whether the agency’s decision is consistent with the terms of the solicitation and applicable statutes and regulations or whether the agency acted fraudulently or in bad faith (Intellectual Properties Inc.) A protest must contain an allegation of improper conduct by the agency. The protest should include a detailed statement of the legal and factual grounds for the protest where it is shown the agency took particular actions and those actions were contrary to law or regulations (Charleston Marine Containers).

Inadequate Solicitations. Many of the recent successful protests revolved around inadequate solicitations. Adequacy of a solicitation requires, as a general rule, sufficient detail to enable bidders to compete intelligently and on a reasonably equal footing. Examples of decisions include:

1. FAR Part 10 requires agencies to conduct market research to determine if commercial items are available and ascertain related commercial practices. An agency’s failure to conduct market research to confirm customary industry practices when specifying requirements may result in a successful protest (Smelkinson Sysco Food Servs.)

2. Though an agency has broad discretion to select an evaluation scheme in a solicitation, cost or price to the government must be included as an evaluation factor in every government solicitation (S.J. Thomas Co.).

3. An agency’s "intent" expressed in a legal solicitation is not a legal requirement so the award of a single contract even though the solicitation stated the agency intended to award two was not sufficient to win the protest (Canadian Commercial Corp.).

4. FAR 15.306 allows the CO to limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition but the solicitation must advise offerors of this intent (Matrix Gen. Inc).

5. Under negotiated procurements, the CO has broad discretion in deciding whether to cancel a solicitation as long as there is a "reasonable" basis such as the government no longer has a need for the items solicited (Safety Storage Inc.). Under sealed bidding, the discretion is much more limited, only when there is a "compelling reason." Such compelling reasons have been held to be when only one bid is received or when more than one bid is received but all prices are held by the agency to be unreasonable (Quality Inn & Suite Conference Center).

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