Bias is a frequent bid protest argument, but it is often unsuccessful because government officials are presumed to act in good faith. To overcome that presumption, a protester must provide "convincing proof" of the alleged bias. A protester cannot rely on inference or supposition alone as evidence of a government official's unfair or prejudicial motives.
What level of proof is sufficient to show bias? According to the U.S. Government Accountability Office's (GAO's) decision in Squire Solutions, Inc., B-419477.2, Jun. 10, 2021, hearsay is not enough. In that case, the protester was not selected for award of a Phase I Small Business Innovation Research (SBIR) project. The protester challenged the decision and argued, among other things, that a particular evaluator was biased against the protester and "blacklisted" it from receiving SBIR awards. To support its bias allegations, the protester included declarations from two company employees stating that other individuals (who were not identified) told them that the evaluator was biased against the protester. The alleged bias apparently stemmed from the fact that the protester had filed an earlier agency-level protest before protesting at the GAO.
The agency took corrective action in response to the initial protest and investigated the bias allegations. As part of the investigation, the agency interviewed 17 employees, including the allegedly biased evaluator and the other members of the evaluation team. The agency found no evidence of the alleged bias and then affirmed its prior award decisions.
The protester filed a second protest, which GAO denied. GAO found that the agency's evaluation of the protester's proposal was reasonable and had been consistent throughout (despite the agency taking corrective action at least twice in response to the agency-level and initial GAO protest). GAO also found that the declarations from the protester's two employees fell short of the "convincing proof" standard required to show bias. GAO noted that the two employees "did not possess first-hand knowledge of any information indicating bias" and their declarations "failed to provide the names of the individuals who allegedly had direct knowledge (or heard) of relevant information (nor did Squire provide this information at a later date)."
Another recent example of bias allegations in the bid protest context is the protest of the Department of Defense's Joint Enterprise Defense Infrastructure (JEDI) procurement for a 10-year, $10 billion cloud-computing contract. Amazon Web Services protested the contract alleging that President Trump improperly influenced the evaluation to retaliate against Amazon founder Jeff Bezos. To support the bias allegations, Amazon's Amended Complaint cited to various tweets and public statements from President Trump and then-Secretary of Defense Mark Esper, as well as congressional testimony and reports from the DoD Inspector General.
But we will likely never know whether Amazon's bias allegations would have proven successful. The Court of Federal Claims denied the agency's motion to dismiss the bias allegations in April 2021, but it made no findings of fact on the merits of those allegations. Although the court characterized the statements cited by Amazon as "numerous and varied," it noted that "[w]hether plaintiff can prevail on its bias claim is another matter entirely." Amazon could have sought to prove its bias allegations further in discovery, but DoD announced that it would simply cancel the JEDI contract and pursue a new contract, the Joint Warfighter Cloud Capability (JWCC), that would likely be a multiple award IDIQ contract.
As the examples above show, the presumption of good faith makes it very difficult to prove bias in the bid protest context. Hearsay alone probably is insufficient, and even if a public official makes unfavorable statements about a particular company (as in the Amazon case) a protester must still show—with "convincing proof"—that those unfavorable statements affected the agency officials involved in a procurement. But that does not mean that bias should never be alleged. If a protester has a good faith basis to believe that bias may have played a role, making those allegations may prompt the agency to take corrective action to investigate the alleged bias and ensure that the evaluation was fair and reasonable.
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