Protesting with Less Than a Full Deck at GAOLaw360 Article
The ultimately successful grounds for many bid protests at the U.S. Government Accountability Office often first become known to protesters after the procuring agency produces its agency report in response to the initial protest. For the protester, that agency report would optimally be a “full deck” of the procurement file, including the entirety of the awardee’s proposal, all the post-proposal communications, the evaluation records, and related documents. But what if, despite such a request, the agency report omits segments of the procurement records that the protester believes are essential for prosecuting the protest? This article discusses this area of increasing dispute, which we refer to as “protesting with less than a full deck.” We address the policy ramifications of limiting protesters’ access to the full source selection record, and how contractors and their protest counsel should address this in their post-award strategies.
Almost by definition, an initial protest at the GAO is based on an incomplete record. The initial protest relies primarily on the publicly known information about the awardee’s business and capabilities and debriefing information provided to the protester. But debriefings rarely acknowledge any agency errors or omissions in the source selection process, and they provide little information on the awardee’s proposal. Lurking behind the salutary purpose of helping disappointed bidders improve their proposals for the next procurement, an implicit agency debriefing objective is to persuade a disappointed offeror that the agency conducted the evaluation in strict accordance with the solicitation criteria, that there were no errors or mistakes in the evaluation or source selection, and that a protest would be futile.
A disappointed bidder not persuaded by the debriefing to abandon its effort to win the award understands that only after an agency produces its agency report does the protester have visibility into the raw data prepared and relied upon in the source selection process. Indeed, documents in the agency report sometimes conflict with information provided to the protester in the debriefing. Moreover, those documents frequently reveal strong supplemental protest grounds that could not have been known to the protester at the time of the initial protest.1
But recently, some agencies have shown an increased tendency to limit the documents produced in the agency report to those the agency deems relevant to the initial protest grounds.2 If a protester is not vigilant, this can severely reduce the chance for either prevailing with a sustained protest or obtaining corrective action at the GAO. In effect, an agency’s strategy can present a protester with the difficult choice of either prosecuting its protest with less than a full deck at the GAO, or moving the protest to the U.S. Court of Federal Claims, where production of a full record is usually required.
The Legal Standard: “As Appropriate”
A critical filing in any GAO bid protest is the agency report, which contains not only the contracting officer’s statement of facts and the agency’s legal response to the protest but, more importantly for the purposes of this article, “the record” of the procurement and the agency’s evaluation. Protesters have traditionally relied upon the GAO’s bid protest regulations at 4 C.F.R. 21.3 to require agencies to produce the specific documents requested as relevant to their protests of an agency’s source selection decision. Though the regulation mandates the inclusion of the statement of facts and legal memorandum, the remainder of the agency report contents are left to more of a flexible guideline, providing that the agency report shall include “all relevant documents,” including, “as appropriate,” documents such as the proposals submitted by the awardee and the agency’s evaluation documents.
What Is Appropriate?
While the production of these core procurement documents (e.g., the awardee’s complete proposal and the agency’s full evaluation file) had been standard procedure,3 some agencies have treated “appropriate” as meaning only a limited set of documents most obviously relevant to the initial protest grounds, and exclude from the agency report anything else. For example, if the initial protest challenging the agency’s evaluation of the awardee relates to technical and past performance only, but does not include a price or cost related protest ground, agencies have argued that the price volume of the awardee’s proposal and any price evaluation documents are not appropriate and will not be produced as part of the record. When this occurs, counsel for protesters, awardee intervenors, and agencies (not to mention, the GAO attorneys) are often forced to expend significant resources to resolve these document disputes. The GAO will either sustain or deny the agency’s attempt to limit the scope of the agency report documents. If the agency prevails, the protester must then decide whether to continue at the GAO with less than a full deck, or move the protest to the Court of Federal Claims.4
This trend reaches to other components of the procurement record before the agency, such as discussions documents. Traditionally, agency reports included the discussions correspondence between the agency and both the awardee and protester, respectively. But more recently, agencies have sought to withhold these documents from the agency report if a protester does not allege in its initial protest a specific discussions-related procurement violation. Indeed, given the rarity of post-award debriefings providing disappointed offerors visibility into discussions (or a basis to raise specific factual allegations protesting something that occurred in discussions), this practice effectively eliminates the protest grounds of unequal or non-meaningful discussions by shielding these critical phases of the procurement record from review by the GAO.
If the GAO allows agencies to limit agency reports only to those documents the agency interprets as relevant to the initial protest in such a restrictive manner, more protesters may begin pushing the bounds of speculation in asserting the broadest possible set of initial protest grounds. This presents protesters with the Hobson’s choice of either asserting protest grounds that may tread into the lake of speculation, or facing the prospect of protesting without a full deck, a severe handicap. Notably, this is the opposite direction Congress — of which the GAO is a branch — would like to see. On Dec. 12, President Donald Trump signed into law the House and Senate’s agreed-upon version of the 2018 National Defense Authorization Act, which under Section 818 (titled “Enhanced Post-Award Debriefing Rights”) will require agencies to provide significantly more information to contractors during the debriefing process.
At bottom, no interests are served by an incomplete or limited agency report in a GAO protest. A robust procurement record in bid protests is in the public interest, and there presumably should be nothing for a procuring agency to hide from the GAO or the protester, particularly where the record documents containing proprietary and source selection information are governed by the strict rules of the GAO’s protective orders. Nor would complete records render protests into fishing expeditions, as any allegations arising from a complete record are subject to the same GAO pleading requirements and dismissal standards as those based on an incomplete record. Rather, were agencies at the GAO required to produce the entire record before it during the procurement, the parties and the GAO would save time and money in litigating document disputes and enjoy a more efficient production of the record as is the case at the Court of Federal Claims.
Absent congressional or GAO action, contractors and their counsel should be mindful of these issues, and we include some recommended strategies to address the partial deck problem.
1. Debriefing Preparation
Approach the post-award debriefing as a last chance to elicit information on every possible issue, regardless of whether a prejudicial error is suspected. Ask for a telephonic or in-person debriefing with a question and answer session. If the agency will only provide a written debriefing, attempt to obtain an agreement that allows the submission of written questions and stipulates that the debriefing is not closed until the questions are answered. Should there be a protest, the answers may support additional nonspeculative protest grounds for assertion in the initial protest, thus limiting the agency’s basis to withhold documents.
2. Contents of Protest
While the GAO does not require protesters to prove their allegations in the initial protest pleading, protest allegations must be “supported by some explanation that establishes the likelihood that the protester will prevail in its claim of improper agency action."5 To this end, protesters should, where possible and supported by facts, intertwine allegations to all relevant areas of the procurement. If a component of the protested technical evaluation was present during discussions, that should be made clear in the allegations to cement the inherent connection between the protest ground and the complete discussions record. Being expansive in asserting legitimate protest grounds in this regard can help mitigate exposure to the partial deck problem.
3. Detailed and Justified Document Requests
The document requests included in the initial protest filing should be as detailed as possible. It is important to include a few sentences on why each document request is relevant to the protest.6 It should be assumed that requested documents may not be produced unless a burden of persuasion is met showing the document is relevant and appropriate for production. There is no entitlement to the document just because it is requested — protesters should connect the relevancy dots.
4. Dynamic Forum Selection
A protester who initially files a protest at the GAO has the ability to file the protest action in the Court of Federal Claims at any time during the pendency of the GAO protest (which will cause dismissal of the GAO protest). If during the course of the protest the GAO upholds an agency’s objection to producing material segments of the awardee’s proposal and/or related evaluation documents, the protester should consider whether to continue litigating at the GAO with less than a full deck or move the protest to the court. While there are a multitude of factors to consider in weighing the choice of moving a protest from the GAO to the Court of Federal Claims (e.g., issues of cost, timing, performance stay, etc.), the likelihood of a complete record should be included in that assessment.
1 One illustrative example is Philips Healthcare Informatics, B-405382.2, May 14, 2012, 2012 CPD ¶ 220. In Philips, the Agency Report filed in response to the initial protest revealed that the agency did not receive the awardee’s final proposal revision until after the solicitation’s established deadline for submission. GAO sustained the protest on this ground. However, this clearly fatal flaw in the procurement was not mentioned in the unsuccessful offeror’s debriefing letter and, had the unsuccessful offeror not filed a protest, the error would never have been revealed and the improperly-awarded contract would have stood.
2 GAO’s Bid Protest Regulations address the contents of an Agency Report, providing at 4 C.F.R. 21.3(d): “The report shall include the contracting officer’s statement of the relevant facts, including a best estimate of the contract value, a memorandum of law, and a list and a copy of all relevant documents, or portions of documents, not previously produced, including, as appropriate: the protest; the bid or proposal submitted by the protester; the bid or proposal of the firm which is being considered for award, or whose bid or proposal is being protested; all evaluation documents; the solicitation, including the specifications; the abstract of bids or offers; and any other relevant documents. In appropriate cases, a party may request that another party produce relevant documents, or portions of documents, that are not in the agency’s possession.”
3 GAO’s Regulations require the agency to respond to the protester’s document requests in writing five days prior to the due date of the Agency Report. The response, colloquially referred to as “the five-day letter,” must also identify any requested documents the agency intends to withhold and the basis for not producing the documents. See 4 C.F.R. 21.3(c) (“The agency’s response shall, at a minimum, identify whether the requested documents exist, which of the requested documents or portions thereof the agency intends to produce, which of the requested documents or portions thereof the agency intends to withhold, and the basis for not producing any of the requested documents or portions thereof.”).
4 In contrast to GAO, protest litigants at the U.S. Court of Federal Claims typically enjoy a more fulsome and complete record without dispute. At the court, with some exceptions, the Department of Justice as protest counsel for the agency typically produces a full Administrative Record. Despite the Rules of the Court of Federal Claims employing similar “as appropriate” language in describing the contents of the record, the court is bound by and follows the rulings of the U.S. Supreme Court and Court of Appeals for the Federal Circuit, which make clear that the court’s review is to be based on the full record that was before the agency when it made its decision.
5 Coffman Specialties, Inc., B-400706.2, Nov. 12, 2008, 2008 CPD ¶ 211.
6 GAO’s Bid Protest regulations provide that a protester may “[r]equest specific documents, explaining the relevancy of the documents to the protest grounds.” 4 C.F.R. 21.1(d)(2).