Government Contracts & Investigations

You Challenge the Award, You Best Come Ready to Play

By | August 13, 2020

Just as in golf swings, your follow-through in Government Accountability Office (GAO) protests can mean the difference between success and failure. And if you don’t have a solid argument to bolster your protest grounds, you might want to rethink bringing them in the first place. The recent GAO decision in U.S. Electrodynamics, Inc., B-418574.2; B-418574.4 (June 23, 2020) serves as a reminder of one of the primary dangers of poor protest follow-through: an insufficient response to the agency’s report can lead to dismissal due to abandonment of the argument in question.

The protest involved a challenge by U.S. Electrodynamics, Inc. (USEI) to an award of a contract for enterprise satellite communications services by the Department of Veterans Affairs (VA). The underlying request for proposals (RFP) made clear that, among other things, only proposals rated acceptable or above under the technical factor would be considered for award. The agency received ten proposals and seven were rated unacceptable, including that of USEI.

When it learned of this rating at its debriefing, USEI filed the protest, in part on the ground that the VA had not properly evaluated USEI’s proposal under the technical factor. More particularly, USEI asserted that the VA improperly assigned it a deficiency based on an erroneous finding that USEI’s proposal lacked necessary detail about its planned transition from the agency’s old equipment to USEI’s proposed new equipment.

In response to this protest ground, the agency provided a detailed response, explaining at length the basis for its finding of a deficiency, and identifying—and quoting—specific portions of the record in support of its position.

According to the GAO, USEI did not meaningfully respond to the agency’s position because it did nothing more than restate verbatim its initial protest claim and then suggest–through a misleading, incomplete quotation of the evaluation record–that the agency’s legal memorandum and contracting officer’s statement mischaracterized the evaluation record. USEI attempted to claim that the VA evaluators actually found its proposed technical approach acceptable, arguing that the agency’s “post-protest after the fact rationales” ignored the evaluators’ conclusion that “USEI ‘gives detailed tasks and their related transition time frames in figure 2.3.1-1 of the proposal.'”

GAO noted, however, that the argument mischaracterized the record and ignored what the technical evaluation actually said: “Although the offeror gives detailed tasks and their related transition timeframes in figure 2.3.1-1 of the proposal, they failed to identify the technical steps on how they would transition the teleports and the remote terminals.” The evaluation went on to explain that this failure amounted to a deficiency because the lack of technical detail increases the risk to the VA of an unsuccessful transition to the new equipment.

Reading the complete, unedited record, the GAO found that the evaluators identified a deficiency in USEI’s proposal that rendered it unacceptable, as represented by the agency in its report. Because USEI failed to offer any substantive response to the agency’s position other than the misleading quote, the GAO concluded that USEI had abandoned this portion of its protest and dismissed the contention for that reason.

As is often the case with GAO decisions, we will probably never discover exactly what the pleadings contained—or have the opportunity to decide whether we agree with the GAO’s reasoning. But one thing is clear: if you are not prepared to present strong protest arguments in support of each ground based on a reasonable interpretation of the complete record, you will not be able to prevail on those grounds. Contractors considering protests should carefully consider their potential arguments and limit their protest to grounds that it is prepared to back up. Contractors who don’t will likely face the same fate as USEI.

Contact Eric Whytsell for more information.