Monday, April 11, 2016

Navy Award Was Not Biased

It is very difficult to win a discrimination case of any kind in Federal Court. The number of discrimination cases have steadily declined to less than half the number there were in 2000. In 2006, only 15 percent of cases were settled in favor of plaintiffs. In fact, the odds of winning a discrimination case have many attorneys unwilling to even try. Many attorneys will no longer take individual discrimination cases because of the high likelihood of losing. Of course, the low probability of winning could be a reflection of out-of-court settlements. Employers who are charged with discrimination often settle out of court if there is any substance to the claim. Employers are not stupid. Or perhaps, employers settle out of court because they've calculated that settling is cheaper than the cost to litigate - even if they think the discrimination case has no merit.

The GAO (Comptroller General) recently published a bid protest case involving discrimination. The unsuccessful bidder for a Navy contract involving architectural-engineering services challenged the Navy's evaluation of its experience and technical competence and alleged that the Navy's evaluation reflected gender bias against women architects and engineers. The protestor is an economically disadvantaged women-owned small business (EDWOSB).

The GAO denied the request because the record demonstrated that the Navy reasonably evaluated the protester's experience and technical competence consistent with the solicitation's selection criteria and the record did not support the protester's allegation of gender bias.

The Navy evaluation of the protester's qualifications determined that it did not meet the experience and technical competence selection criterion. Three of the projects submitted to support experience were not relevant, involving only construction inspection services. The Navy found that the protester presented a high risk to the Government because it submitted only two relevant projects. The protester was asked to address this lack of experience during an interview. After it and other bidders were interviewed, the Navy ranked the three bidders among which the protester was last. The protester had the least amount of relevant projects among the three firms.

The Comptroller General (CG) reviewed the record and essentially determined that the Navy did everything correct. The CG reported "Quite simply, the contemporaneous record here supports the Navy's conclusion that (the protester's) limited experience and technical competence presented a high risk."

The protester alleged bias against the firm because it was woman-owned. In that regard, the protester submitted a number of reports and academic papers supporting the protester's arguments that women are discriminated in scientific fields such as architecture and engineering. The CG dispatched this argument quickly. "Government officials are presumed to act in good faith, and we will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition; where a protester alleges bias, it must not only provide credible evidence clearly demonstrating bias against the protester or in favor of the successful firm, but must also show that this bias translated into action that unfairly affected the protester's competitive position."

Those last words are key: "credible evidence clearly demonstrating bias".  If you cannot show or demonstrate that, you have no case.

You can read the entire GAO decision here.

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