GAO Bid Protest Attorneys: GAO Bid Protests Lawyer

On August 19, 2019, the GAO denied a protest over the qualifications of the contractor’s proposed key personnel.  ARServices, Limited, B-417561.2 (August 19, 2019)  The RFP stated that key personnel resumes would be evaluated on “whether the individual’s qualifications and experience are relevant to the requirements set forth in the PWS.” The RFP defined an unacceptable rating for the key personnel subfactor as one where the “[p]roposal does not meet [the] requirements of the solicitation, and thus, contains one or more deficiencies, and/or risk of unsuccessful performance is unacceptable.” It further stated that such proposal would be unawardable.

With respect to an applications developer, the RFP state he or she must have “at a minimum: a Bachelors of Arts or Science in [a] business related discipline (logistics, industrial engineering, management, economics, finance, information technology) and at least two years’ recent experience within a [Department of Defense] organization.”  Here, the key personnel did not have this exact experience,  He had a Bachelor of Science degree in marine biology and working on a master’s degree in information systems. That did not cut it.

The GAO upheld the Agency’s rejection of the contractor’s proposal as unacceptable, holding that “[w]here a solicitation states that the qualifications of key personnel will be evaluated, and a proposal fails to demonstrate that key personnel hold qualifications that the solicitation requires them to possess, the proposal may be evaluated as unacceptable. ICI Servs. Corp., B-411812, B-411812.2, Sept., 21, 2015, 2015 CPD ¶ 288 at 5.

Lesson Learned: Make sure your key personnel meet the minimum requirements in the solicitation.  A miss could result in a rejection of your proposal.  Also, even though the Government may have approved a key personnel for a position before, does not meant that the Government will do so in a future solicitation.

ARServices, Limited, B-417561.2 (August 19, 2019)

In the bid protest of Progress for Bakersfield Veterans, LLC, B-414425.5 (January 28, 2019), the GAO would not recommend cancellation of a lease for a Community Based Outpatient Clinic (“CBOC”).  In response to the bid protest, the VA took corrective action by agreeing to pay the protester its protest and proposal preparation costs. The protester objected to this corrective action, arguing it does not compensate it for the lost opportunity to compete for the procurement.

The GAO held that, because the lease was already awarded and it does not include a termination for convenience clause, they will not recommend termination of the awarded lease:

Absent a termination for convenience clause, our Office will not recommend termination of an awarded contract, even if we sustain the protest and find the contract award improper. New Jersey & H Street, LLC, B-311314.3, June 30, 2008, 2008 CPD ¶ 133 at 7 (citing 4 C.F.R. § 21.8(d)(upon sustaining a protest, GAO may recommend payment of the costs associated with pursuing the protest and bid and proposal preparation costs); Peter N.G. Schwartz Cos. Judiciary Square Ltd. Partnership, B-239007, B-239007.3, Oct. 31, 1990, 90-2 CPD ¶ 353 at 11. Instead, in such instances, our Office has found that the protester is entitled to the recovery of its proposal preparation costs and the costs of filing and pursuing its protest, including attorneys’ fees. Federal Builders, LLC-The James R. Belk Trust, B-409952; B-409952.2, Sept. 26, 2014, 2014 CPD ¶ 285 at 8.

Although the GAO does not expressly say so, their logic is that, without a termination for convenience clause, the VA has no right to terminate the lease without being in breach of contract. An interesting twist to think about before you file a GAO protest involving a contract or lease without a termination for convenience provision.

On October 5, 2018, the GAO denied a protest challenging the award of a bridge contract related to the Air Force’s Network-Centric Solutions-2 (NETCENTS-2) IDIQ procurement. The Air Force was not satisfied with the incumbent’s performance during the base year and decided not to exercise the option to allow it to continue work. This left the Air Force in a predicament. To continue IT services previously provided by the incumbent, Technica Corporation, until a new contract award could be made, the Air Force issued a sole source “bridge contract” to Leidos Innovation Corporation, a large business. The Air Force justified this sole source procurement based on “urgent circumstances.” The GAO upheld the Air Force’s decision and found that “the agency’s need for the services is of an urgent nature, and that providing a fair opportunity to all NETCENTS-2 vendors would result in unacceptable delays.” This case illustrates the significant discretion an agency has when justifying a sole source procurement based on urgent and compelling circumstances.

Technica Corporation, B-416542 (October 5, 2018)

The GAO rules on timeliness are like trapdoors.  If your protest is late, the GAO is quick to dismiss it.  A recent GAO case illustrates this. In Exceptional Software Strategies, Inc., B-416232 (July 12, 2018) the protestor  challenged the Government’s decision to exclude it from the competitive range.  Generally, this type of protest must be filed within 10 days after the contractor received notice that it was excluded from the competitive range.  However, there is an exception to this rule. Specifically, if a debriefing is required, the contractor can file a GAO protest within 10 days after the debriefing occurred. In the Exceptional Software case, the protestor filed a protest within 10 days after the debriefing.  The GAO still found that the protest was untimely, however.

The GAO held that even though the Government gave a debriefing it was not a “required” one because the contractor did not request the debriefing within 3 business days after being notified that it was excluded from the competitive range. This is where it gets tricky. The contractor filed its request for a debriefing on the third business day at 4:59 pm.  One would think that is timely. But no, the GAO cited Federal Acquisition Regulation § 33.101, which defines “filed” as “unless otherwise stated, the agency close of business is presumed to be 4:30 p.m., local time.” The GAO found that nothing in the solicitation, or elsewhere in the record, designates the business hours of NSA, and as such, the 4:30 pm deadline applied to the request for a debriefing.  And because the debriefing request was late, it was not a “required” one.  This meant the contractor did not have extra time to protest and had to do so within 10 days after it was excluded from the competitive range.

On April 25, 2017, the Court of Federal Claims released a decision in Gallup, Inc. v. The United States, No. 16-1656C, which sanctioned the United States Special Operations Command (“Government”) for providing a key document in the administrative record that was backdated.  The document contained a market analysis to justify setting aside the procurement for small businesses.  The Government indicated that this document was created before the solicitation was issued for public bid.  The Contracting Officer also provided a “Certification of Contracting Office” affirming that “after careful review, the following documents constitute the record of administrative actions.”

It turned out that the Market Analysis was created after the protest was filed, but backdated to cover this up.  The Contracting Officer admitted this was a “huge mistake” to the Court:

[W]hen I received the pre-filing notice about December 13th, I said, uh-oh, if [Gallup] really file[s], I need to make sure my record [is] in good shape. […] I realized I had the [chart] with nothing that consolidated that or nothing that summarized that and I prepared the [Memorandum for Record] at that time, sir. I now know that [] was a huge mistake and I am deeply sorry that this has come to this. . . . [T]he timing was wrong.

The Court sanctioned the Government for providing a inaccurate and misleading document in the administrative record.  The Government did not oppose the appropriateness of sanctions and told the Court it will take action to prevent this from happening again, promising to “issue guidance to its contracting office emphasizing the importance of completeness, accuracy, and integrity of preparing records and accompanying certifications.”

The Contracting Officer certainly learned her lesson here.

On January 3, 2017, the Court of Federal Claims denied a bid protest over a contractor’s failure to provide a redacted copy of its proposal.  The solicitation required offerors to redact their names and proposed subcontractors.  The purpose of redacting was to promote an unbiased technical evaluation of proposals.  The contractor argued that its failure to redact was a “minor informality or irregularity” that the Government should have waived.  The Court held that unlike FAR Part 14 sealed bidding procedures, in commercial item and negotiated procurements, the Government has the discretion to waive, or not to waive, minor informalities. See, FAR 52.212-1(g) which states that the agency “may … waive informalities and irregularities in offers received.”  Additionally, the Court found that the failure to redact was not a minor oversight, but “deliberate and designed to give it an advantage (or at least to remove some perceived disadvantage).”

Lesson Learned:  The Government does not have to waive minor informalities if the procurement is not administered under FAR Part 14, Sealed Bidding.  Strictly follow a solicitation’s redaction instructions.

Strategic Business Solutions, Inc. v. United States of America, United States Court of Federal Claims, No. 16-81C (January 3, 2017)

The GAO dismissed a protest as untimely because the Protestor failed to file comments to the Agency Report within 10 days. Although the Protestor emailed his comments to the GAO lawyer handling the case within 10 days, the GAO held that this did not count. The GAO indicated that the Protestor should have filed its comments at protests@gao.gov pursuant to Rule 21.0(f).

This is a harsh result, in my opinion.  After all, the GAO lawyer received the comments on time.  The lesson learned here is to email your protest comments to protests@gao.gov and the GAO attorney handling the case.

GLF Consulting, B-412316.3 (December 21, 2016)

For a brief period of time this year, the GAO lost jurisdiction to hear protests over civilian task and delivery orders above $10M. This left contractors with no remedy to challenge the manner in which the Government evaluated proposals for award of civilian task or delivery orders. Thankfully, this jurisdiction has been restored by the 2017 National Defense Authorization Act.  On the other hand, the Act increases the jurisdictional threshold for non-civilian task orders from $10M to $25M, which will narrow the GAO’s jurisdiction involving task/delivery orders for military procurements.

2017 National Defense Authorization Act

In the GAO protest of Kratos Defense & Rocket Support Services, Inc. (August 23, 2016) the GAO sustained a protest where a proposal stated that it assumed the Government would provide on-site work space and equipment, even though during the solicitation process the Government said that such support would not be provided. The GAO noted that, as a matter of law, “a proposal that takes exception to a solicitation’s material terms and conditions should be considered unacceptable and may not form the basis for an award. Material terms of a solicitation are those which affect the price, quantity, quality, or delivery of the goods or services being provided.”

The lesson learned here is never take exception to a solicitation term in your proposal.  This could be a fatal mistake if it pertains to “price, quantity, or delivery of goods or services.”

In Patricio Enterprises Inc., B-412740 et al (May 26, 2016) the GAO held that the Government’s past performance evaluation was improper.  Offerors were required to submit up to five (5) past performance references. The protestor, Patricio, submitted five past performance references. Two of them receiving the highest ratings, “Very Relevant/Exceptional.”   The other three received lower ratings, including “relevant” as opposed to “very relevant.”  Based on these ratings, Patricio received on overall past performance evaluation of “Satisfactory Confidence.”  The awardee received a higher past performance evaluation of “Substantial Confidence.”

                            GID                                                    Patricio

Reference 1          Very Relevant/Exceptional              Very Relevant/Exceptional

Reference 2         Very Relevant/Exceptional              Very Relevant/Exceptional

Reference 3         Not Relevant                                  Very Relevant/Very Good

Reference 4         [none]                                           Relevant/Exceptional

Reference 5         [none]                                           Relevant/Exceptional

Overall Rating:   Substantial Confidence                     Satisfactory Confidence

In explaining why Patricio got a “Satisfactory Confidence” rating, the Government stated:

The Past Performance Evaluation Team decided that a SUBSTANTIAL performance confidence assessment would be warranted when ALL relevant past performance was determined to be VERY RELEVANT with EXCEPTIONAL quality ratings. Any other combination of relevancy and quality would result in a SATISFACTORY (or lower) performance confidence assessment.

Based on the above methodology, Patricio was penalized for providing more than two past performance evaluations.  If Patricio had just submitted References 1 and 2, it would have received the highest overall rating for past performance. The GAO held that this was unfair and sustained the protest.

The GAO noted that “the agency’s mechanical evaluation of past performance was unreasonable where the result was that additional relevant past performance references with exceptional and very good quality resulted in a downgraded past performance rating.  This holding is consistent with the GAO prior holding in Olympus Bldg. Servs., Inc., B-285351 (August 17, 2000), where the Government’s mechanical formula for scoring experience unreasonably penalized an offeror for including extra, less relevant references in addition to relevant ones.