On May 7, the Government Accountability Office (GAO) dismissed a protest challenging the terms of a solicitation for being unduly restrictive. The protest highlights three important considerations that contractors should understand when deciding to file a protest:
- Competitive prejudice is a required element of any viable protest.
- Under the Federal Acquisition Regulation (FAR), an agency cannot fault a bidder for lacking relevant past performance.
- Pre-award protests are available to potential protesters who wish to challenge the ground rules of a procurement, but they must be submitted prior to the closing date for quotations.
Below, we discuss the solicitation requirements, the merits of GAO's decision to dismiss the protest, and expand on the considerations contractors should weigh when determining whether to initiate a protest.
Solicitation
On February 11, 2025, the U.S. Air Force released a Request for Proposals (RFP) for grounds maintenance services at Joint Base Langley-Eustis (JBLE). The solicitation designated the procurement as a total small business set-aside and contemplated a fixed-price award. The Air Force was to evaluate proposals using a Lowest Price Technically Acceptable (LPTA) approach, considering three criteria: price, technical acceptability, and past performance. Technical and past performance evaluations would be rated as either "acceptable" or "unacceptable," with awards going to the lowest price offeror that was rated acceptable for both of those criteria. Importantly, the relevant past performance requirement necessitated the submission of at least two references for contracts worth at least $1 million annually.
Proposals were due by March 7, 2025, and the agency received four submissions, including one from incumbent K&K. Although it submitted a proposal, K&K also filed a pre-award protest before the proposal deadline, challenging the solicitation's past performance evaluation factor as unduly restrictive.
Discussion
Specifically, the protester challenged the solicitation's requirement that bidders submit two past performance references and the evaluation factor's definition of "relevant size" as a project with a value of at least $1 million per year. The protester argued that those requirements were unduly restrictive and would effectively exclude small businesses from participating in the procurement.
GAO disagreed for two critical reasons. First, while GAO can sustain a protest challenging a solicitation requirement for its unduly restrictive nature where it is not reasonably related to the agency's needs, it only does so when the unduly restrictive requirements restrict the protester from competing. Here, the protester submitted a proposal that successfully identified two references for past performance that met the $1 million threshold. GAO found that "because the protester has demonstrated the ability to submit—and has, in fact, submitted—a proposal that met the number and size requirements for past performance under the RFP as written, the protester has not demonstrated competitive prejudice." In other words, even if the $1 million threshold for past performance projects was unduly restrictive, it did not negatively impact K&K's ability to compete for the award because it could, and in fact did, meet the requirement.
Second, GAO found the protest to be without merit because the FAR prohibits the government from disadvantaging offerors who have no record of relevant past performance. FAR 15.305(a)(2)(iv) provides "[i]n the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance." Further, the solicitation did not "provide that offerors without two relevant past performance references will be deemed ineligible for award." Together, that meant that an offeror for this small business set-aside contract that did not have two "relevant" past performance examples, meaning over $1 million, would be rated neutral for that factor rather than excluded. For those reasons, the GAO concluded "under this solicitation—which provides for selection on an LPTA basis—an offeror without a record of relevant past performance remains eligible for award."
Contractor Considerations
Competitive Prejudice Required for Successful Protest. For a protest to ultimately be successful, the protester must establish "competitive prejudice." It is insufficient to show that an agency made an error in its evaluation process. Instead, a protester must demonstrate that the error negatively impacted its chance of award. GAO stated that "where a prospective offeror has not shown competitive prejudice stemming from a solicitation provision, the offeror is not an interested party to challenge that provision." Here, the protester could not have been prejudiced because, by submitting two past performance references that met the $1 million threshold, the protester demonstrated that it was able to make a responsive offer notwithstanding the allegedly unduly restrictive past performance criterion.
Agency Cannot Fault Bidder Without Relevant Past Performance. FAR 15.305(a)(2)(iv) states, "[i]n the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance." It is important for bidders to remember that, in the absence of a solicitation provision to the contrary, inability to produce relevant past performance does not, by itself, make a bidder ineligible for award.
Pre-Award Protests Are Available. Protests based on alleged improprieties in a solicitation that are apparent before the closing date for receipt of quotations must be filed prior to that date. If the protest is filed after the deadline for quotations or proposals passes, the protest will be dismissed for being untimely. For this reason, it is critical that contractors understand that they have an opportunity to protest the terms of the solicitation and move quickly to file such a challenge.
Conclusion
The K&K protest underscores the necessity for contractors to clearly demonstrate competitive prejudice for any protest to be successful. Second, the protest reminds contractors that agencies are prohibited from rendering a bid ineligible if the contractor cannot provide relevant past performance. While a neutral past performance rating may be a disadvantage where that factor is given a qualitative score in a best value procurement, neutral is all that is needed to be found acceptable under an LPTA evaluation scheme. Third, the protest emphasizes to contractors that pre-award protests challenging the terms of a solicitation are possible but must be submitted prior to the close of quotations.
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