The Government Accountability Office’s (GAO) bid protest regulations require protesters to provide a detailed statement of the legal and factual grounds of protest. Upon receiving the notice of protest, the agency subject to the protest has 30 days in which to file an agency report. The agency report contains a list and a copy of all documents relevant to the protest. Such documents typically include the solicitation, the protester’s bid or proposal, and any other records pertinent to the grounds of protest. The agency report also includes the agency’s response to the protest contained within a memorandum of law. While the GAO does not require protesters to file formal briefs or other technical forms of pleadings or motions, protesters must nevertheless file concise and logically arranged protests that clearly state legally sufficient protest grounds. Stated another way, protesters are required to include sufficient legal and factual bases in their protests to establish a reasonable potential that their allegations may have merit. However, protesters often file protests with allegations that are based on speculation, factual inaccuracies, or flawed legal assumptions. In such cases, the GAO will dismiss the protest or the legally or factually flawed allegations within it without requiring the procuring agency to submit an agency report.

The government may use the sole-source authority in Federal Acquisition Regulation (FAR) § 6.302-1 when there is a reasonable basis to conclude that its minimum needs can only be satisfied by one responsible source. In this regard, a procuring agency has the discretion to determine its needs and the best method to accommodate them, especially in procurements involving matters of national defense or human safety. Protesters disagreement with the government’s judgment concerning its needs, without more, is insufficient to prove that the government’s judgment is unreasonable. However, even in such procurements, potential alternative sources must be afforded a meaningful opportunity to demonstrate their ability to meet the agency’s needs. When prospective sources are excluded from competition in favor of a sole-source award without the chance to demonstrate their ability to meet the requirement, they are entitled to file a bid protest provided they qualify as an interested party. To qualify as an interested party to file a Government Accountability Office (GAO) protest, the protester must be eligible for the award based on the current record. A protester is not considered an interested party if it is not eligible to receive a contract award even if its protest is to be sustained.

Past performance evaluations play an important role in determining the strength and viability of competing offerors’ proposals. It is generally within the procuring agency’s discretion to determine the scope of the past performance history to be considered during evaluation, provided all proposals are evaluated on the same basis and the evaluation is consistent with the terms of the solicitation. While procuring agencies are typically permitted to limit their evaluations to only consider past performance information submitted in response to the solicitation, under certain limited circumstances, outside information not submitted with the offerors’ proposals must also be considered. Under such circumstances, the procuring agency is required to consider outside information as part of its past performance evaluation when the information is determined to be “too close at hand” to require competing offerors to bear the inequities that would arise from the agency’s failure to obtain and consider the information. Notably, the “too close at hand” principle is narrowly interpreted and is only applied to information related to the offerors’ past performance.

In B-275554, the Government Accountability Office (GAO) sustained a bid protest challenging the procuring agency’s past performance evaluation by applying the “too close at hand” principle. In that procurement, the Department of Veterans Affairs (VA) intended to acquire a replacement telephone system for the VA Medical Center in Wilkes-Barre, Pennsylvania. In evaluating the protester’s past performance, the contracting officer (CO), as the source selection authority, identified two directly relevant past performance references but only considered one reference, as an agency official did not complete a required form with respect to the protester’s other past performance reference. Notably, the contract whose reference was not considered involved the same agency, the same CO, and virtually the same services as the solicitation at hand. Furthermore, the CO conducting the procurement not only had the first-hand knowledge of the prior contract but also described the protester’s performance as “exemplary” in a letter provided to the Small Business Administration (SBA) on an unrelated matter. In applying the “too close at hand” principle, the GAO sustained the protest and concluded that it was unreasonable for the CO not to consider the protester’s past performance information on the earlier contract under these circumstances.