Category: Bid Protests

60-Second Sustains: ITility, LLC

Elizabeth N. Jochum ●

ITility, LLC
B-421871.3

  • The protester argued that the Department of Homeland Security had unreasonably assessed the awardee a “positive” based on an incorrect understanding of what the awardee had proposed.
  • Specifically, the protester argued that, while the Agency assigned a positive for an element of the awardee’s proposal relating to enterprise risk management (“ERM”), the awardee’s proposal actually used ERM to refer to enterprise resource management.
  • According to the Government Accountability Office (“GAO”), the Agency did not substantively refute this allegation, so GAO sustained the protest.
  • GAO also agreed with the protester that the Agency unreasonably evaluated offers in two other respects:
    1. First, the Agency unreasonably found that both the protester and awardee met key personnel requirements, when the protester had offered personnel that met qualifications identified in the RFP as “preferred.”
    2. Second, the Agency found that the protester’s transition plan “met the requirements,” but failed to document any qualitative evaluation of the proposed plan, including the protester’s plan to have the contract fully staffed by Day 1 as the incumbent.
  • In both instances, GAO agreed that the Agency had ignored a potential discriminator in favor of the protester and sustained the protest grounds.

Timely Protesting Non-Solicitations at GAO

Merle M. DeLancey, Jr. and Michael J. Slattery ●

The Government Accountability Office’s (“GAO”) rules for timely protesting non-solicitations can be confusing. Offerors (or potential offerors) diligently monitoring SAM.gov need to focus on the substance of a non-solicitation posting and not simply the name or subject line an agency uses for the posting. Postings titled Notices of Intent, Sources Sought Notices (“SSN”), and Requests for Information (“RFI”) (collectively “pre-solicitation notices”) are common but the information therein can be different even for nearly identical titled postings. For example, one agency’s RFI might request that interested parties submit statements of interest or capabilities while another agency’s RFI has no such requirement. Companies need to carefully review these pre-solicitation notices to determine if they must protest the notice to be timely under GAO’s rules, or if they can wait and protest the terms of a subsequently issued solicitation.

The general rule is that GAO only has protest jurisdiction over actual solicitations—not pre-solicitation notices—since the pre-solicitation notice does not set forth the actual final requirements of an agency, but only a draft of the eventual requirements. Protests of such pre-solicitation documents that do not reflect the final actual requirements of the agency will be dismissed as premature, as they only anticipate improper agency action. See F-Star Zaragosa Port, LLC, B-417414.1, B-417414.2, Apr. 15, 2019, 2019 U.S. Comp. Gen. LEXIS 110 at *1; see also AeroSage, LLC, B-415893, B-415894, Apr. 17, 2018, 2018 Comp. Gen. ¶ 142 at 4-5 (explaining that “a sources sought notice is a request for information by the agency and not a solicitation that anticipates the award of a contract”); Onix Networking Corp., B-411841, Nov. 9, 2015, 2015 Comp. Gen. ¶ 330 at 5 (concluding that a request for information provided to prospective vendors is not a “solicitation that embodies [the agency’s] actual requirements”); Sigmatech, Inc., B-296401, Aug. 10, 2005, 2005 Comp. Gen. ¶ 156 at 4 (finding that a “sources sought notice is not a solicitation”).

Continue reading “Timely Protesting Non-Solicitations at GAO”

60-Second Sustains: Criterion Corporation

Elizabeth N. Jochum ●

Criterion Corporation
B-422309

  • In Air Force procurement for base operations support services, the Agency had eliminated the protester from consideration for award on the basis that its proposed price was significantly lower than the internal government estimate (“IGE”) and the average proposed price and, therefore, was found unrealistic.
  • The protester challenged its elimination, arguing that it proposed a unique technical approach that supported its low price and that the agency ignored the technical approach, instead conducting a mechanical comparison of the proposed price to the IGE and the average price of other offerors.
  • GAO noted that the purpose of a price realism analysis is to determine whether proposed prices are realistic for the work to be performed, reflect a clear understanding of the requirements, and are consistent with the offeror’s unique method of performance.
  • In this case, GAO found that the Air Force had not considered the entirety of the protester’s technical solution when concluding the proposed price was unrealistic.
  • While the Agency had compared the number of employees the protester proposed and its labor rates, it had not considered its labor mix or whether its technical solution was unique.

60-Second Sustains: Deloitte Consulting LLP and Softrams LLC

Elizabeth N. Jochum ●

Deloitte Consulting LLP
B-422094; B-422094.2

  • During the evaluation of the awardee’s quotation, the Department of Homeland Security identified a potential Organizational Conflict of Interest (“OCI”) with one of the awardee’s proposed teaming partners.
  • The Agency engaged in discussions with the awardee, in which the awardee informed the Agency that the teaming partner with the potential OCI would be immediately removed from the team and would not participate in the program upon award.
  • Deloitte argued that the agency failed to consider the impact of the teammate’s removal on the awardee’s proposed approach to performance.
  • The Agency provided declarations asserting that the agency had considered the elimination of the teaming partner and its impact on performance, but the Government Accountability Office (“GAO”) found that those declarations were unsupported by the contemporaneous record and gave them little weight.
  • GAO sustained the protester’s argument that the Agency’s evaluation was unreasonable because it failed to consider the elimination of the teaming partner.

Deloitte Consulting LLP; Softrams, LLC
B-421801.2,B-421801.3,B-421801.4,B-421801.5,B-421801.6

DISPARATE TREATMENT

  • Both protesters alleged numerous instances where the Library of Congress engaged in disparate treatment by assessing strengths for elements of the awardees’ proposals that were substantially indistinguishable from the protesters’ proposal features that did not receive strengths.
  • In most cases, the Agency argued that the strengths in question stemmed from differences between the proposals or that the protesters’ proposal features were, in fact, captured in the evaluation. However, in a few instances, the Agency instead argued that the disparate treatment was insignificant or did not prejudice the protesters.
  • GAO found these instances amounted to a concession by the Agency that there had been disparate treatment and sustained these protests, since the competition was extremely close and any change in competitive standing could have impacted source selection.
Continue reading “60-Second Sustains: Deloitte Consulting LLP and Softrams LLC”

60-Second Sustains: American Material Handling, Inc.

Elizabeth N. Jochum ●

American Material Handling, Inc.
B-422171

  • The Agency, the International Boundary and Water Commission, was buying a brand name or equal wheel loader on a lowest price, technically acceptable basis.
  • The RFQ stated that the proposed loader had to “meet the salient features or specifications of the [brand name product] or exceed the specifications attached,” and included a two-page specification sheet.
  • After receiving quotations, the contracting officer added salient characteristics—not expressly included in the solicitation—to the technical evaluation form to be considered during evaluations.
  • The Agency evaluated the two quotes received and found the protester not technically acceptable based on the salient characteristics added after submission of quotes.
  • GAO sustained the protest of the evaluation, noting that, in a “brand name or equal” acquisition, the agency has an obligation to inform vendors of the characteristics that are essential to the government’s needs; a product offered as an “equal” one need not meet unstated features of the brand name product.
  • Here, GAO found the agency “appeared to be deciding what characteristics it considered to be salient for the first time during its evaluation of quotations.”

60-Second Sustains: SierTek-Peerless JV LLC

Elizabeth N. Jochum ●

SierTek-Peerless JV LLC
B-422085, B-422085.2

  • The protester alleged that the Transportation Security Administration had not properly evaluated the awardee’s proposal under the prior experience factor.
  • The RFP required the agency to consider the size of offerors’ prior experience examples compared to the anticipated contract.
  • The Agency assigned the awardee a High Confidence rating under this factor, stating that they had demonstrated prior experience that was relevant in terms of both size and scope.
  • But the Government Accountability Office (“GAO”) found that the evaluation record failed to demonstrate that the Agency evaluated whether the size of the awardee’s prior experience examples were similar to the anticipated contract.
  • The evaluation report contained “little, if any discussion of any indicia of the size” of one of projects and conclusory statements that the other projects were similar in size, without any discussion of why and despite differing values and staffing numbers.
  • GAO found that the agency’s evaluation focused almost entirely on scope, rather than size, of the prior experience examples.
  • Since prior experience was the most important evaluation factor, GAO stated the protester was possibly prejudiced by the error and recommended the Agency reevaluate proposals.

FY2023 GAO Protest Statistics: Dramatic Increase in Sustain Rate Is Illusory, but Increase in Overall Filings Is Real

Luke W. Meier and Carolyn R. Cody-Jones ●

The Government Accountability Office (“GAO”) has released its Annual Report to Congress summarizing bid protest activity for Fiscal Year 2023 (GAO-24-900538). Although there is a seemingly drastic increase in the number of protests sustained, the real trend worth noting is an uptick in protests filed at GAO—reversing a recent trend that had seen GAO protest numbers falling.

With the full context in hand, the FY 2023 GAO protest data mostly show a steady continuation of recent trends: the number of sustains and sustain rate remains largely the same as FY 2022, “effectiveness” remains high and stable (57 percent), and the hearing rate remains low at two percent (22 for the year). The meaningful increase in cases filed at GAO shows that protesters still view GAO as a valuable protest forum, even as an increasing number of protesters opt for the more fulsome document production and (at times) less deferential analysis they expect at the U.S. Court of Federal Claims.

Continue reading “FY2023 GAO Protest Statistics: Dramatic Increase in Sustain Rate Is Illusory, but Increase in Overall Filings Is Real”

Government Offerors—There Are No Foolish Questions

Merle M. DeLancey, Jr. ●

The Government Accountability Office (“GAO”) regularly denies protests because an offeror made assumptions in its proposal. To the offeror, such assumptions seem perfectly reasonable but to an agency the assumptions are incorrect or contrary to the agency’s intended procurement approach. As a result, the offeror’s proposal is rejected as non-compliant.

If the offeror files a GAO protest, GAO will likely dismiss the protest as being untimely, stating that the offeror was required to challenge a solicitation’s terms and conditions prior to the deadline for the submission of proposals. This scenario is frustrating because it likely could have been avoided had the offeror simply asked the agency questions.

Frequently, clients ask us to opine on what information an agency is seeking in a solicitation or how to interpret a term in a solicitation. These questions are often asked shortly before an offer is due. While we do our best, our guidance is not a substitute for agency guidance. We appreciate offerors are busy. Most prepare proposals based on due dates. As a result, by the time an offeror begins to prepare its proposal, the solicitation’s Q&A period is over.

Continue reading “Government Offerors—There Are No Foolish Questions”

Relief Requested: What the Federal Circuit’s CACI-Federal Decision Means for Your Bid Protest beyond Standing

Stephanie M. Harden ●

The primary holding of the Federal Circuit’s May 2023 decision in CACI, Inc.-Federal v. United States (Case No. 2022-1488), is that “statutory standing” is no longer a jurisdictional issue. This means that when considering whether a protester is an “interested party” under the Tucker Act, the Court of Federal Claims (“COFC”) is not required to address statutory standing before the merits.

Although much has been written about this holding, our view is that there will be little or no impact on most bid protests stemming from this particular aspect of the decision, other than perhaps an uptick in denying protests on the merits without first addressing statutory standing.

We think the more interesting part of the decision is its reaffirmance of the Chenery doctrine, and specifically, the Federal Circuit’s direction about which issues must be remanded back to the agency, rather than decided by the COFC in the first instance. Although the Chenery doctrine is not new, the Federal Circuit has now made it clear that the doctrine greatly limits the COFC’s ability to order specific relief where an issue was not previously considered by the agency. On this issue, our takeaway is that CACI-Federal will actually lead to a reduction in the COFC weighing in on certain merits-based issues.

Confused about how Chenery relates to statutory standing? Read on for our analysis.

Continue reading “Relief Requested: What the Federal Circuit’s CACI-Federal Decision Means for Your Bid Protest beyond Standing”

60-Second Sustains: Life Science Logistics, LLC

Elizabeth N. Jochum ●

Life Science Logistics, LLC
B-421018.2, .3

  • The protester alleged that GSA failed to conduct meaningful discussions by not raising, in pre-corrective action discussions, significant weaknesses that resulted in the proposal being rated unacceptable in a post-corrective action evaluation.
  • GAO has held that, when an agency seeks revised proposals and performs a new evaluation, that reevaluation may identify flaws in a materially unchanged proposal that the agency would have been required to discuss with the offeror, had the flaws been identified when the proposal was initially evaluated.
  • In that situation, the agency must reopen discussions in order to disclose its concerns.
  • GSA argued Life Science’s pre- and post-corrective action proposals were materially different, but GAO found that the content that gave rise to the significant weaknesses was present in both proposals but had been overlooked in the initial evaluation.
  • Since the Agency did not advise Life Science of the significant weaknesses in its initial proposal when conducting discussions, GAO sustained the protest and recommended GSA reopen the procurement, conduct meaningful discussions, and evaluate revised proposals.
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