iSince our last Bid Protest Hub article in November, the Government Accountability Office (“GAO”) has published 37 bid protest decisions, two of which have resulted in decisions sustaining the protester’s challenge. As we enter into the new year, it remains critical for government contractors to understand what issues win at the GAO and why. Below, we cover a few important GAO decisions you should know from December 2023.
What Won – Sustained Protests
In Washington Business Dynamics, LLC, the GAO sustained a protest challenging the Office of Personnel Management’s (“OPM”) evaluation of quotations as deficient and the subsequent blanket purchase agreement (“BPA”) award as unreasonable.[1] The RFQ was issued pursuant to FAR subpart 8.4, to Service-Disabled Veteran-Owned Small Business (“SDVOSB”) firms holding a specific General Services Administration (“GSA”) Federal Supply Schedule (“FSS”) contract. The solicitation required the agency to evaluate whether the offerors understood the requirements outlined in the performance work statement (“PWS”) and required a qualitative analysis of offerors’ staffing classifications and management approaches. As a preliminary matter, OPM argued that the protester was not an interested party because it did not recertify as an SDVOSB after the protester was acquired by another firm. GAO rejected this argument, reasoning that a firm that is small at the time of its initial offer and award of the FSS contract is considered small for subsequent orders issued under the contract unless the contract includes a recertification requirements. Concerning the protester’s challenge to OPM’s evaluation and subsequent best-value tradeoff decision, the GAO agreed with the protester and found (1) the awardee’s quotation contained only minimal, high-level references to the PWS, insufficient to demonstrate its understanding of all PWS requirements and thus, the agency failed to reasonably evaluate this requirement; (2) OPM failed to conduct the requisite qualitative analysis of quotations during its evaluation and instead used a pass/fail analysis; and (3) OPM’s best value analysis relied on adjectival ratings and a flawed evaluation.
Where an agency is required to conduct a qualitative evaluation of offerors’ proposals, the agency must have adequate documentation, containing sufficient detail, to support its judgment. In the face of a superficial or non-existent qualitative analysis, a protester may have grounds for challenging an agency evaluation.
In Great Lakes Dredge & Dock Company, LLC, the GAO partially sustained a protest challenging the Army Corps of Engineers decision to cancel of its invitation for bids (“IFB”) and its subsequent conversion of the IFB into an negotiated procurement.[2] The agency received two sealed bids in response to its IFB, both exceeding the agency’s independent government estimate and the amount of funds available for the project. The agency cancelled the IFB, stating it would convert the requirement into a negotiated procurement, on the grounds that (1) the bids were unreasonably high, (2) the bids exceeded government funding, and (3) there was a lack of government funding to support the project. Great Lakes challenged both the agency’s cancellation and subsequent conversion. The agency dropped two of its initial defenses, choosing to justify its decision solely due to a lack of government funding. Although the GAO found that the agency’s determination that funding unavailability is a sufficient reason to cancel a solicitation, GAO also found the agency could not properly convert this acquisition into a negotiated procurement. While the FAR allows agencies to convert a solicitation into a negotiated procurement in some instances, including those where submitted bids are unreasonably high, the FAR does not allow a conversion due to a lack of funding. Because the agency chose to abandon its defense that bids were unreasonably high, the GAO found the agency had no legal authority for this decision and sustained the protest.
Although an agency may convert or cancel an acquisition, this authority is not without bounds. When an agency attempts to cancel or convert, it is important for offerors to review any amendments to ensure the agency possesses the requisite FAR authority to support its decision.
Conclusion
It is key for federal contractors to understand the attributes of what issues win at the GAO and why. Stay tuned next month for our January 2024 Bid Protest roundup.
FOOTNOTES
[1] Washington Bus. Dynamics, LLC, B-421953, B-421953.2, Dec. 18, 2023, 2023 WL 8874140.
[2] Great Lakes Dredge & Dock Co., LLC, B-421676.4, Dec. 19, 2023, 2023 WL 8922168.
