1. Was the Procurement Legally Flawed? The first step is to analyze whether there were legal improprieties in the award decision. The fact you disagreed with the agency’s judgment is not enough but rather you need to show there was something objectively wrong with the agency’s evaluation. Protests are usually not effective when subjective issues are raised where the agency contracting and source selection officials had significant discretionary judgment in making its determinations. Rather, focusing on the so-called “hard,” non-discretionary issues are your best chance of success where it can be shown that procurement regulations or terms of the solicitation were violated. Examples include: Were capabilities not disclosed in the solicitation evaluated? Were there any downgrades based on inaccurate information or incorrect assumptions about your proposal? Did the agency disclose all significant weaknesses, deficiencies and adverse past performance information during discussions? Was your cost/price evaluations based on the technical solution proposed? Did the agency ignore your competitor’s failure to meet a minimum required solicitation requirement? Did the agency fail to consider whether your competitor had an organizational conflict of interest? Did the agency consider all the disclosed evaluation factors and only those factors when conducting a best value tradeoff analysis? Did the agency fail to adequately document its award determinations?

2. Were you prejudiced? Once you have determined there are good grounds to pursue a protest the next step is to determine whether you were prejudiced by the poor evaluation. To win a protest you must show the agency’s errors deprived you of a reasonable chance to win the contract. Not all errors will affect a procurement so you have to be able to say if the agency had not made those errors then would you have had a substantial chance for award. If the award would have gone to someone else then there is no reason to pursue the challenge.

3. Is there a good business reason to file a protest? Assuming the first two conditions are met then you have to put on your business hat and ask some questions: How important is the contract to our firm? In addition to obvious sales and profitability questions does the contract allow you access to new markets, offer follow-on opportunities or allow you to maintain a desirable line of business?

4. Will a protest adversely affect your relationship with a customer? It should be realized that unlike the commercial world, the government expects protests especially on high dollar, contested procurements so common fears of offending an important customer are usually exaggerated. Nonetheless, as a practical matter there may be some adverse customer impact so you should consider the strength of your relationship, does the customer rely only on you for its products and services, what is the personality of the customer’s representatives and how much time may pass before your next opportunity with the customer.

5. What are the chances of success after the protest? The published rate for GAO sustain rates is 27% in 2007. In our experience that figure is low because it does not take into account mutually agreed to accommodations made at the agency level that results in withdrawing a protest. Those actions raise another 10-20 points of success on initial protest filings.

6. What are the chances of winning the contract? Winning the protest does not guarantee winning the contract. The most common remedy is to reevaluate proposals or to solicit revised proposals so all you may have is “another bite of the apple.” If after the debriefing you believe your proposal is highly competitive and can be revised to be even more so then the second bite may be advantageous. But if the agency seems unlikely to award you the contract under any circumstances then a successful protest may be an empty victory.

7. How much will the protest cost. It depends on the size and complexity of the procurement, the volume of the evaluation record, the need for experts and how the hearing officer manages the protest. The author, a lawyer, states the cost of drafting an initial protest is low and you can always cut your loses early if the evaluation record does not support your original position.

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To discuss your needs, contact Bill Lennett, Principal, at 1-925-362-0712 or email him at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

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