Demonstrating Competitive Prejudice in Protests Involving Waived Material Requirements

Generally, when a government contract solicitation sets forth requirements in specific terms, interested offerors are required to meet them precisely. This is especially true for material requirements which must be satisfied in order for an offeror’s proposal to be considered technically acceptable for award. However, in certain limited circumstances the procuring agency may relax or waive material solicitation requirements in making an award, if the proposed solution meets the government’s needs and there is no prejudice to the other offerors. In such cases, it is insufficient for a protester seeking to challenge the government’s waiver of material solicitation requirements to merely show that it would have been next in line for award, or that the awardee would have been unsuccessful but for the waiver. Rather, the existence of competitive prejudice is established by demonstrating that the protester would have altered its proposal to its advantage or could have done something different to improve its chances for award had it been afforded the opportunity to submit a response to the changed solicitation requirements. 

In B-423821.2; B-423821.3, a decision issued on April 20, 2026, the Government Accountability Office (GAO) denied a protest challenging the agency’s waiver of material solicitation requirements in making the award because the protester failed to demonstrate competitive prejudice. The U.S. Army Corps of Engineers (USACE) issued a $43,712,124 task order under an indefinite-delivery, indefinite-quantity (IDIQ) contract for operation, maintenance, and facility management services at various Defense Health Agency (DHA) facilities in Germany, Belgium, and Italy. For the portion of the work to be performed in Italy, the request for proposals (RFP) required offerors to register for an anti-mafia screening white list. During discussions, the USACE reiterated the white list requirement, explaining that offerors were required to initiate the registration process with a local government official known as a prefetto before submitting their proposals. Prospective offerors were advised that they had to include evidence of having initiated the registration process with their proposal submissions. 

In the GAO protest that followed the task order award, the protester asserted, among other arguments, that the awardee’s proposal had failed to satisfy the white list registration requirement. According to the protester, the awardee had failed to comply with this material solicitation requirement because it did not file with the prefetto until the day following its final proposal submission. To demonstrate competitive prejudice stemming from the agency’s decision to relax the registration requirement, the protester argued that if the agency had found the awardee’s proposal unacceptable, it would be next in line for award. Notably, the protester did not explain how the agency’s failure to enforce the white list registration requirement strictly impacted its own proposal or what it would have done differently had it known of the potential waiver. Meanwhile, the agency argued in relevant part that the white list registration requirement was not material and that even if it was, the protester could not demonstrate competitive prejudice.

In its decision denying the protest, the GAO explained that even if it assumed the white list requirement was material and that the awardee had failed to meet it, the protest could not be sustained because the awardee failed to demonstrate a meaningful possibility of competitive prejudice. In this regard, the protester had failed to explain how it would have altered its own proposal or otherwise approached the procurement differently had it known that the USACE would not strictly enforce the white list requirement. Similarly, the protester made no effort to explain how its own competitive position, independent from that of the awardee’s, was meaningfully impacted by the awardee filing its registration packet with the prefetto a day late. Consequently, the GAO denied the protest, noting that being next in line for award if the awardee’s proposal is found unacceptable is insufficient to demonstrate competitive prejudice when an agency has waived or relaxed a material solicitation requirement.  

Offerors must typically meet material requirements for their proposals to be deemed technically acceptable and eligible for award. Yet, the procuring agency may sometimes elect to relax or waive material solicitation requirements in making an award. For the waiver to be appropriate, the winning solution that fails to satisfy the relevant material requirements must nevertheless meet the government’s needs. In addition, the government’s waiver decision must not prejudice the other offerors. In this context, the relevant inquiry concerning competitive prejudice is not whether the protester would have been next in line for award had the awardee’s proposal been found unacceptable. Instead, the protester must establish that it would have changed its proposal to its competitive advantage or done something differently to alter its own competitive posture had it been allowed to respond to the altered requirements. Ultimately, even though the relevant inquiry is distinct, as with other GAO protests, demonstrating competitive prejudice remains essential in protests involving waiver of material solicitation requirements.

This Bid Protest Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.