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Morris Manning & Martin, LLP

Recent Challenges to Government Procurements Prove Successful

06.23.2020

Many see bid protests as a common practice in government contracting. Protests frequently cause an agency to take corrective action and reconsider an award decision. However, a sustained protest is relatively uncommon. Indeed, in FY 2019, the sustain rate at the Government Accountability Office (GAO) was 13%. Last month, GAO sustained two protests, and these decisions provide useful reminders for contractors on the utility of pre-award protests and supplemental protests.

The matter of ASRC Federal Data Network Technologies, LLC; Ekagra Partners, LLC involved a pre-award protest of a task order. The solicitation contemplated a hybrid task order with both firm fixed-price (FFP) and time-and-material (T&M) elements.

Each protester raised several protest grounds, but GAO sustained the protest on one basis: the sufficiency of the information in the solicitation. As noted above, the task order would include T&M and FFP work elements, and offerors were required to allocate staff between FFP and T&M tasks and subtasks. This requirement was complicated by the fact that the performance work statement included numerous tasks and subtasks designated as both FFP and T&M. The descriptions for these tasks/subtasks did not indicate which part would be FFP and which part would be T&M. The protesters argued that the solicitation did not provide enough information for offerors to understand the required level of effort or the apportionment of that effort between the FFP and T&M areas.

GAO sustained the protests, finding that even an experienced information technology contractor would not be able to adequately understand the scope of the FFP portion of the work as compared to the T&M portion. In reaching its decision, GAO reiterated the established principle that although a solicitation need not be drafted to eliminate all uncertainties, agencies must provide offerors with sufficient detail to enable them to compete intelligently and on a relatively equal basis. The solicitation at issue did not meet that standard because it lacked sufficient information regarding task and subtask staffing. GAO rejected the agency’s argument that an offeror could address the uncertainty by setting forth a basis of estimate in its proposal, reasoning each offeror would be using its own assumptions to fill in critical information missing from the solicitation, resulting in offerors not competing on a common basis.

This decision serves as a reminder of the value of pre-award protests. The protesters were confronted with an unclear solicitation and an agency that was unwilling to resolve the identified uncertainties. The protesters could have rolled the dice and submitted proposals based on their understanding of the requirements but may not have been selected for award. And, the protesters would not be able to challenge this aspect of the solicitation in a post-award protest. By filing formal protests, the protesters preserved their rights and will be provided with additional information to prepare their proposals.

The matter of the Leidos Innovations Corporation was the third protest in a series of protests of an Army procurement. The solicitation sought logistics support services, and as part of the procurement, offerors participated in videotaped Q&A sessions and oral presentations with agency personnel. These videotaped sessions proved to be critical in the most recent protest. The protester challenged several aspects of the evaluation, including the agency’s failure to consider information provided during the Q&A session. The agency acknowledged that the information was not considered during the evaluation but asserted that the evaluation team had reviewed the recordings and decided not to consider the recording for any offeror. The agency also acknowledged that it did not consider information provided by the awardee during interchanges but claimed there was no prejudice to the protester. To resolve the question of prejudice, GAO directed the agency to produce the complete evaluation record—including the Q&A sessions. In response, the agency admitted that the Q&A sessions had been deleted, and as a result, it was incorrect when it stated that the evaluation team had reviewed the recordings before deciding not to consider them. This admission led to a supplemental protest in which the protester argued the agency’s failure to consider the Q&A sessions and interchanges was contrary to the terms of the solicitation.

Unsurprisingly, GAO sustained the protest, finding the agency deviated from the solicitation and failed to consider information that was relevant to the offerors’ proposed approaches. As for prejudice, GAO rejected the agency’s argument, stating: “Where the agency’s source selection decision, which replaces a prior award to the protester, is based on a flawed evaluation process, we will resolve doubts concerning the prejudicial effect of the agency’s actions in favor of the protester.”   

When a protest is filed, the protester has no idea what the administrative record will contain. Experienced protest counsel closely review the evaluation record for deviations from the solicitation, inconsistencies in the evaluation, and other missteps. These newly discovered errors can provide the basis for a supplemental protest. In this case, the protester had no idea that the agency deleted the Q&A sessions when it filed its protest, but that information proved to be critical in its successful protest.

If you have questions about bid protests, you may contact any member of the MMM Government Contracts team.