The GAO’s decision in BC Peabody Constr. Serv., Inc., B-408023 (May 10, 2013) [pdf] illustrates the importance of establishing prejudice in a bid protest. The protester alleged that it proposed the same subcontractor (Bauer Foundation Corporation) as the awardee proposed on a dike rehabilitation project. Both offerors relied on Bauer for the “cut-off wall,” a critical element of the project. Both proposals showed that Bauer had the required experience for the cut-off wall.
Despite their use of the same subcontractor, the Corps of Engineers nevertheless assigned the awardee and the protester different scores for the cut-off wall element of their proposals. The Corps rated the awardee’s proposal acceptable for both the demonstrated experience and past performance subfactors, but it rated the protester’s proposal unacceptable. The GAO agreed the Corps’s action was procurement error. “Where multiple proposals propose the same contractor, once the agency becomes aware of that subcontractor’s experience . . . it cannot reasonably assign one proposal a higher score than another based on that experience.” GAO nevertheless denied the protest.
During the protest, it came to light that BC Peabody had failed to provide a required letter of commitment from Bauer, an omission that would have been deemed a deficiency. GAO concluded that BC Peabody could not show that it was prejudiced by the Corps’s improper evaluation. Even if the procurement error had been corrected, BC Peabody could not have won the contract because its proposal still would have been considered unacceptable.
The result in this case is not surprising. It reminds us that a contractor considering a bid protest must not focus only on the agency’s apparent procurement errors. It must also identify the prejudice resulting from the error. A protester must be prepared to show that it would have had a substantial chance of receiving the award but for the agency’s improper actions. A fourth-ranked offeror, for example, must be able to show not only that it would have received a better technical evaluation score, but also that it would have beat out the second and third-ranked offerors and been in contention for the contract award.