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Post Hoc Proposal Reevaluation Exacerbates Error in Award Decision

Last Friday, the Government Accountability Office (“GAO”) released a public version of Delfasco, LLC, B-409514.3 (March 2, 2015), a decision noteworthy because of how the GAO dealt with an agency’s post hoc reevaluation of proposals.  The protestor, Delfasco, LLC (“Delfasco”), had an incumbent contract to sell dummy practice bombs to the U.S. Army, and it protested the award of a follow-on contract to GTI Systems, Inc. (“GTI”), a competitor.

While Delfasco’s protest was pending before the GAO, the Army reevaluated the offerors’ proposals, and it found errors in its evaluation.  The Army increased Delfasco’s past performance rating, and it eliminated three strengths that had been assigned to GTI’s technical proposal.  Nonetheless, the Army concluded that these errors would not have altered its award decision.  In its final brief to the GAO, the Army explained this reevaluation.  The Army asserted that Delfasco had not been prejudiced, and it asked the GAO to deny Delfasco’s protest.

The Army’s mid-protest reevaluation influenced the GAO’s decision, but not in the way that the Army had intended.  The GAO credited the reevaluation insofar as it gave credence to Delfasco’s protest, finding that the Army’s reevaluation “effectively concede[d] that [the Army’s] prior evaluation . . . was erroneous.”  However, the GAO rejected the corresponding contention that Delfasco had not been prejudiced.  According to the GAO, this post hoc assessment by the Army, made in the heat of litigation, deserved little weight.  Finding instead sufficient evidence of prejudice, the GAO sustained Delfasco’s protest.

The Army likely regrets briefing the GAO on its post hoc reevaluation.  Perhaps it had been reluctant to delay its procurement by taking corrective action.  Perhaps now, if a similar situation arose, it would take corrective action.  Whatever the case, the lesson for protestors and protest counsel in such situations is to analyze whether and how such post hoc evaluations can redound to their benefit.

© 2019 Covington & Burling LLP

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About this Author

Scott Freling, Government Contracts Lawyer,  Covington Law Firm
Partner

Scott Freling divides his practice between working with civilian and defense contractors on traditional government contracts matters and representing buyers and sellers, including a number of private equity firms, in complex M&A deals involving a government contractor.

Mr. Freling represents contractors at all stages of the procurement process and in their dealings with federal, state, and local government customers. In addition, he counsels clients on compliance matters and risk mitigation strategies, including obtaining SAFETY Act liability protection for...

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