Friendly Reminder: Protest Grounds Cannot Be Based Solely on Supposition and Speculation
August 17, 2018
By: Eric Whytsell
There can be a huge difference being “knowing” something is true and being able to prove it. The same is true when it comes to articulating protest grounds before the Government Accountability Office (GAO). It’s not enough to simply tell a good story that “makes sense” to yourself. No matter how sound the reasoning, protest claims must be based on more than mere supposition and speculation. Otherwise, you will never get the opportunity to convince the GAO that your protest has merit. The importance of relying on a solid factual basis when crafting protests grounds was again underscored in the recent GAO decision in CAMRIS International, Inc., B-416561 (August 14, 2018).
The matter involved a procurement for scientific, technical, and other professional support services by the Department of Health and Human Services, National Institutes of Health (NIH). The solicitation contemplated the award of a fixed-priced, indefinite-delivery, indefinite-quantity (IDIQ) contract with reimbursable travel costs, for a three-year period of performance, to be made on a best-value tradeoff basis. The factors to be considered included technical, past performance, and price. Id. at 91.
The agency received four proposals, including those from CAMRIS International, Inc. (CAMRIS) and the eventual awardee, Kelly Services. The same day it was notified that the NIH had awarded the contract to Kelly Services, CAMRIS requested a debriefing. The agency’s written debriefing informed CAMRIS that Kelly Services received the highest overall ranking and a +1 past performance rating, and had a total evaluated price of $653,597,141, as opposed to CAMRIS’ being rated second in the overall technical ranking, receiving a +1 past performance rating, and having a total evaluated price of $583,459,669. NIH also advised CAMRIS that Kelly Services’ proposal included several superior approaches that justified its price premium over CAMRIS’s lower technical rated proposal.
In response, CAMRIS protested, arguing, among other things, that: (1) NIH failed to identify key discriminators between its proposal and the awardee’s proposal under the technical capability element; (2) NIH failed to determine that the awardee’s price was unreasonably high; and (3) NIH conducted a flawed past performance evaluation. The agency moved for dismissal in part because these protest grounds were legally insufficient.
In its first ground, CAMRIS contended that NIH’s technical evaluation was flawed because the agency failed to recognize the superiority of CAMRIS’s proposal over the awardee’s proposal based on the benefits package that CAMRIS offered. According to CAMRIS, it specifically proposed to provide additional employee benefits that Kelley Services did not offer. The protest went on to assert that: (i) CAMRIS’ proposal would have been more highly rated if the agency had not overlooked these aspects of its proposal; (ii) CAMRIS would have received more points than the awardee; and (iii) it would have been awarded the contract as the higher rated, lower priced offeror.
CAMRIS next asserted that the agency improperly failed to determine that the awardee’s price was unreasonably high, arguing that the “significant disparity” between its price and that of Kelley Services (which was 12 percent higher) should have made the nature of the awardee’s price clear to NIH. CAMRIS also speculated that the awardee’s allegedly exceedingly high total evaluated price was likely the result of its seeking above-market profits, or paying for labor at rates above market, and could not have resulted from Kelley Services’ having proposed an enhanced technical solution or possessing superior corporate expertise.
Finally, CAMRIS argued that NIH’s past performance evaluation was flawed because it failed to find CAMRIS’ past performance information superior to that of the awardee and instead assigned the same rating to the two offerors. More particularly, CAMRIS argued it should have received a +2 (i.e., excellent) rating based on verbal feedback as well as its continuing contractual relationship with a past performance reference that led CAMRIS to expect that its past performance references would have indicated that they would definitely, certainly, or unhesitatingly do business with CAMRIS again. In contrast, it speculated that because Kelley Services was the incumbent contractor and did not receive a +2 (i.e., excellent) rating, the contracting or program officials on the incumbent contract did not indicate that they would unhesitatingly do business with the awardee again on the most relevant past performance reference contract. As a result, CAMRIS concluded that the agency should have recognized that CAMRIS has superior past performance information.
The problem for CAMRIS is that none of these three protest is based on the protester’s actual knowledge of the contents of Kelly Services’ proposal. Instead, they are all based on nothing more than its speculation and supposition. The closest CAMRIS appears to have come to relying on actual facts was in connection with its first argument concerning benefits packages. Unfortunately, as acknowledged by CAMRIS, it compared its proposed benefits package to the benefits offered by Kelley Services on the incumbent contract, not those offered in its actual proposal for the new work.
As explained by the GAO, its Bid Protest Regulations require that a protest include a sufficiently detailed statement of the grounds supporting the protest allegations. In other words, a protest must include sufficient factual basis to establish a reasonable potential that the protester’s allegations may have merit; bare allegations or speculation are insufficient to meet this requirement. In addition, unsupported assertions that are mere speculation on the part of the protester do not provide an adequate basis for protest.
Here, the protester based its challenges to the agency’s evaluation of its own proposal and the awardee’s proposal on its speculation with regard to the contents of the awardee’s proposal, having no actual knowledge as to its contents. For this reason, the GAO dismissed CAMRIS' arguments because such speculation is insufficient to state a valid basis for protest.
Don’t make the same mistake. If you decide to protest an unfavorable contract award decision, confirm that your protest grounds are based on more than conjecture and speculation. If you don’t “kick the tires” and make sure that you’re relying on facts instead of supposition, you could end up spending a lot of time and treasure only to have your protest dismissed before you get a meaningful chance to prove your allegations are true.
Eric Whytsell is responsible for the contents of this article.
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