GAO Considers Reconsideration
It’s not unusual for defeated protesters to feel as though the explanation for their defeat short changes their arguments. Indeed, this might be the case for every defeated protester (or intervenor, or agency). The Government Accountability Office (GAO) decision in Analytical Solutions by Kline, LLC (ASK), B-417161.3 (July 11, 2019), published on GAO’s website on December 11, 2019, provides a glimpse into what GAO looks for when considering requests for reconsideration.
In its underlying protest, ASK protested the terms of the Social Security Administration (SSA) request for proposals (RFP) for information technology support services. As background, the solicitation’s terms provided that SSA would evaluate proposals under four phases: (1) SSA accessibility requirements and required quality certification, (2) relevant experience requirements, (3) detailed corporate experience, and (4) past performance. Phases 1 and 2 were to be evaluated using a pass/fail method. Under phase 1, offerors were required to include either a capability maturity model/capability maturity model integration (CMM/CMMi) certification or an international organization for standardization (ISO) certification. Further, offerors, under phases 2 through 4, were limited to providing only three references relating to their experience even though a number of requirements were bundled together in the procurement.
In its initial protest, ASK argued that the solicitation unduly restricted competition in requiring CMMi certification and references demonstrating relevant experience, as well as by limiting the number of past performance references. Further, after reviewing the agency report, ASK filed a supplemental protest, arguing that the agency improperly bundled dissimilar requirements, which was also unduly restrictive. For various reasons, ASK’s protest was denied in part and dismissed in part in GAO’s March 12, 2019 decision.
GAO’s Bid Protest Regulations state that a successful request for reconsideration requires that the requesting party, who could be the protester, intervenor, or agency involved in the protest, “show that GAO’s prior decision contains errors of either fact or law, or . . . present information not previously considered that warrants reversal or modification of the decision.” 4 C.F.R. 21.14 (a), (c).
In its request for reconsideration, ASK argued that GAO’s decision included three errors of law and failed to consider information that warranted reconsideration.
First, ASK argued that GAO erroneously dismissed its protest as it related to the unduly restrictive certification requirement, maintaining that it had also included a challenge to the alternative ISO certification. According to ASK, it protested the purpose of the certification requirement generally, and merely used the CMMi certification as an example. GAO was unconvinced and did not find support for ASK’s contention that its protest encompassed the ISO certification as well as the CMMi certification finding that: ASK had a section under its “Basis of Protest” entitled “CMMI / CERTIFICATION,” did not discuss any specific concerns with the ISO certification, and only mentioned ISO certifications in its restatement of potential offerors’ questions.
Second, ASK argued that GAO erroneously dismissed its supplemental protest pertaining to improper bundling as untimely, claiming that it had raised the bundling issue in its initial protest and not merely in the supplemental protest filed after the agency submitted its report. Here too, ASK indicated that it had included references to “bundling” in its initial protest. However, GAO noted that ASK’s initial protest referenced bundling only as it related to allowing three references for the wide range of work under the solicitation. GAO found that the bundling requirement identified in ASK’s supplemental protest was fundamentally different – that later bundling assertion related to improper consolidation of requirements that were previously separately solicited, not the three reference limitation.
Third, and finally, ASK argued that GAO erroneously failed to address ASK’s challenge to the “vague and poorly defined pass/fail methodology for phase 1 and phase 2.” Here, GAO relied on its well-established maxim: just because something is not discussed in the GAO decision does not mean that GAO did not consider it in making its decision. GAO maintained that it considered all of the issues raised by ASK and that not addressing each in turn in its initial decision was not indicative of lack of due consideration, but rather furthered the interests of “inexpensive and expeditious resolution of protests.”
A request for reconsideration may be a last resort for protesters taking exception to an agency’s procurement action. The ASK decision makes clear that a protest of the terms of a solicitation must clearly state the bases for objection/concern. It also makes clear that initial protest grounds must be set forth clearly and unambiguously. Vague statements or mere references to a term without tying it to the assertion of a specific protest ground will not establish a cognizable protest ground. Further, in seeking reconsideration, specificity is critical. The requester must cite to specific facts in the original protest to support an assertion that GAO missed or failed to address something.
Contact Judith Araujo for more information.