RECENT GAO PROTESTS SUSTAINED

The Government Accountability Office (GAO) has sustained some protests this month which reinforce the importance of the source selection rules the federal government workforce is obliged to follow scrupulously.  First, a protest that the government engaged in discussions with the awardee but not with the protester was sustained in a case where the awardee was permitted to make material changes to its proposal.  The changes allowed the awardee to make its unacceptable proposal acceptable.  The agency, however, did not afford the protester the opportunity to revise its offer.  The rule is that once the agency undertakes discussion with one offeror, it is obliged to offer all offerors in the competitive range the opportunity to revise their proposals.

Next, GAO sustained a protest where the agency used unstated evaluation factors in its evaluation of proposals.  The agency gave the awardee, but not the protester, evaluation credit for proposing to achieve full operating capability on an accelerated basis. However, the solicitation neither defined the standard nor included a schedule for achieving it.  Moreover, the agency used service desk quantity estimates for price evaluation purposes which differed from the maximum quantities stated in the solicitation.  GAO said the agency must provide sufficient information in the solicitation for offerors to compete intelligently and on an equal basis.

Finally, GAO also sustained a protest challenging a cost realism evaluation where the evaluation was unreasonable.  GAO also came down hard on the government for not explaining how the technical evaluation was conducted, how it evaluated the relevance of the offerors' past performance and whether proposed subcontractors merited consideration.  Also, in that case, GAO determined that the award was not tainted by organizational conflicts of interest since the agency reasonably concluded the potential areas of concern were adequately mitigated.

The lessons from these cases is straightforward.  Insist on a proper debriefing.  If you don't get it, protest to find out what happened.  If, after your lawyer sees the record he or she advises you to continue the protest, do it.  FAR Part 15 rules on source selection are sacrosanct.  GAO is there to enforce them.  Protesting is a small price to pay for the maintenance of the integrity of the procurement system.

bill@spriggslawgroup.com