In the latest Weekly Wright Report:
Protest Based on Alleged Government Bias Is A “Tough Row To Hoe”
You ever feel like the government has it in for you when you are trying to bid on a procurement? In Matter of: Texas Waste Co., LLC, B-421363.2 (Nov. 8, 2023), an incumbent service-disabled veteran-owned small business (SDVOSB) in Texas felt that way and protested the award of a contract issued by the Department of Veterans Affairs (VA) for regulated medical waste removal and disposal services. Texas Waste asserted that the VA’s evaluation of past performance was improperly affected by an alleged bias against Texas Waste. As will be discussed herein, bias is a very difficult standard to prove in the protest context.
The Solicitation Facts
The solicitation was issued under the commercial item procedures of Federal Acquisition Regulation (FAR) part 12 and the simplified acquisition procedures of FAR part 13 and was a set aside for SDVOSBs. The RFQ informed bidders that quotations would be evaluated based on price and past. The agency received four timely quotations from certified SDVOSBs, including Texas Waste and CLC Services, Inc. (CLC). During the initial evaluation of quotations, the agency determined that CLC submitted the lowest-priced quotation. The agency then evaluated CLC’s past performance and assigned it a rating of exceptional, the highest possible rating. In accordance with the terms of the solicitation’s evaluation criteria, the agency did not evaluate the remaining vendors (including Texas Waste) further and instead made the initial award to CLC.
Texas Waste protested the agency’s award decision, alleging that the agency misevaluated quotations under the past performance factor. In response, the agency filed a notice of corrective action resulting in a dismissal of the protest as academic. Following the dismissal of Texas Waste’s first protest, the contracting officer, who was also the source selection authority, conducted a reevaluation of quotations, which included a request for clarifications from Texas Waste regarding its “alternative pricing scheme.” After reevaluating bidders’ prices, the VA found that Texas Waste had submitted the lowest-priced quotation. The agency therefore proceeded to assess Texas Waste’s past performance.
After review the agency assigned an overall rating of satisfactory to Texas Waste’s past performance. Because the satisfactory rating was not the highest possible past performance rating, the agency assessed the past performance of the next lowest-priced quotation, which was CLC’s quotation. After review, the agency gave CLC an overall rating of exceptional under the past performance factor and awarded the contract to CLC.
Allegations of Bias
Texas Waste alleged that the agency’s evaluation of past performance was unreasonable, and that this erroneous evaluation was caused by the contracting officer’s alleged personal bias against Texas Waste arising from prior disagreements with the protester in connection with the incumbent contract. The protester contended that, absent the contracting officer’s biased evaluation, Texas Waste would have received the highest past performance rating and had a substantial chance of award.
Underpinning the protester’s challenges to the agency’s evaluation is the contention that the evaluator for the agency was also the contracting officer on the incumbent contract. The protester alleged that the contracting officer held a personal grudge against Texas Waste because he was removed from the incumbent contract when Texas Waste escalated a complaint about his handling of a request for equitable adjustment. Texas Waste pointed to the fact that after its complaints about the contracting officer another contracting officer, a branch chief, took over the resolution of Texas Waste’s request for an equitable adjustment and was listed as the contracting officer in the contract modification effectuating the equitable adjustment. Texas Waste asserted that “this is a case where an ousted contracting officer is seeking petty vengeance on the contractor that caused him to be removed from his position and who repeatedly went over his head to correct the contacting officer’s mistakes.” Id.
The protester also pointed to an email from the Contracting Officer’s Representative stating that Texas Waste “keeps telling me if we win the contract these are the changes and I am like ok LOL.” The protester also noted two screenshots of undated text messages purporting to be from the COR. In one, the sender of the text message states that “CLC is gonna be banned lol they created a mess” and that they “never had good services … [w]ith them.” In the other, the unknown sender’s statement was that “[t]he contracting chief is going to have a new [contracting officer] take over,” the COR responds that the contracting officer “was on my nerve.”
The Relevant Law
The GAO decisions have consistently explained that government officials are presumed to act in good faith, and a protester’s contention that procurement officials were motivated by bias or bad faith must be supported by convincing proof. INTELiTEAMS, Inc., B–418123.4, Dec. 9, 2020, 2020 CPD ¶397 at 5; Cyberdata Techs., Inc., B–417084, Feb. 6, 2019, 2019 CPD ¶34 at 6. The GAO will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. INTELiTEAMS, Inc., supra; AeroSage, LLC, B–417289.2, May 14, 2019, 2019 CPD ¶180 at 2 n.2. Where a protester alleges bias, it must not only provide credible evidence clearly demonstrating bias against the protester or in favor of the awardee, but must also show that this bias translated into action that unfairly affected the protester’s competitive position. Sterling Medical Associates, Inc., B–418674, B–418674.2, July 23, 2020, 2020 CPD ¶255 at 12; see Graybar, B–411229.2, June 22, 2015, 2015 CPD ¶188 at 5. In this case, the GAO held that Texas Waste failed to provide sufficient evidence.
The GAO Decision
The agency disputed the protester’s assertion that the contracting officer in question was ever removed. The agency established that the branch chief, as the contracting officer’s supervisor, handled Texas Waste’s equitable adjustment as a matter of workload management. The record further showed that other agency officials repeatedly informed the protester, in communications with the protester in this procurement, that the agency official had never been removed as the contracting officer for the incumbent contract. Accordingly, on the record, the GAO found no basis for the protester’s contention that the contracting officer was removed from the incumbent contract because of the protester’s actions, and thus held such contention was not a basis for an alleged personal bias against the protester.
With regard to the emails and alleged texts, the GAO found such “evidence” to be similarly speculative and insufficient. The GAO noted that the statements were not from the contracting officer, but from the COR. Further, the agency noted that, because the solicitation’s evaluation scheme only included price and past performance factors, the COR was not an evaluator in any capacity during the re-evaluation and did not contribute in any capacity to the contracting officer’s reevaluation and award decision. The GAO stated “[w]e find that none of the evidence presented by the protester, including these text messages, provide a credible basis for the protester’s challenge to the agency’s past performance evaluation. . . . Indeed, we find that the protester’s allegations of bias lack the requisite credible evidence, clearly demonstrating bias against the protester, that our Office requires.”
The takeaway here is that if you believe that bias has played a role in the government’s solicitation considerations, the standard of proof is high and you will need to assemble a significant amount of demonstrable proof of the existence of bias in order to overcome the presumption of good faith in favor of the government.
If you have any questions regarding the matters addressed herein, please contact any member of the WCS Government Contracts practice group.