United States: February 2018 Bid Protest Roundup

In this roundup of interesting U.S. Government Accountability Office (GAO) protests released in February, we look at (1) the effect of agency-level protests on GAO protest deadlines; (2) the fairly high bar for winning a bait-and-switch protest; (3) an important limit on agencies' discretion to limit the scope of proposal revisions in corrective action; and (4) the importance of demonstrating that your proposed personnel meet minimum requirements. Also, check out a full-length post devoted to the recent Savannah River decision, and the GAO's unclear precedents on when something said in discussions might start a pre-award protest clock.

Office Design Group, B-415411, Jan. 3, 2018 – Pre-Award Protest Timelines Following Agency-Level Protests

Bid protest deadlines are complicated enough. Throw in an agency-level protest, and they get even more complicated. And when the agency-level protest is not specifically called an agency-level protest, the complication is multiplied even further.

In Office Design Group, the GAO considered whether a protester's objections to the deletion of a particular solicitation provision were timely. Ordinarily, the GAO will consider a protest of a patent solicitation defect only if it is filed before the date set for receipt of proposals. 4 C.F.R. § 21.2(a)(1). Here, the protester filed its GAO protest after the due date for proposals, and the agency predictably argued that the protest should be dismissed as untimely.

The protester, however, pointed to an email it sent to the contracting officer before the proposal due date, in which it (1) expressed confusion regarding whether the solicitation amendment changed the procurement's set-aside status and (2) requested that the agency clarify that status of the procurement. The GAO held that the email constituted an agency-level protest because it was a written communication to the contracting officer, expressing dissatisfaction (the expression of confusion) and requesting corrective action (the request for clarification, which was tantamount to "an appeal to the agency to conduct the procurement as an unambiguous set-aside"). The contracting officer's response the following day then became adverse agency action to an agency-level protest, which triggered a ten-day clock for protesting to the GAO – a deadline that supersedes the ordinary deadline for filing a pre-award protest. 4 C.F.R. § 21.2(a)(3). Because the protester filed its GAO protest within 10 days of the contracting officer's response to its agency-level protest, it was timely filed, even though it was filed after the proposal due date. The protester then went on to prevail on the merits of its protest.

There are two lessons in this decision. First, as we've discussed before, an agency-level protest can alter the usual GAO protest timelines. In this case, the 10-day clock helped the protester avoid dismissal for untimeliness. But it can also work the other way. Suppose a protester sends an email deemed to be an agency-level protest a month before the date set for receipt of proposals. If the contracting officer makes an adverse response the next day, the protester then has only 10 days to file a GAO protest, even though the protester would have had a full 30 days to file if it had not sent that email. See, e.g., Sletager, Inc., B-240789.2 et al., Feb. 1, 1991, 91-1 CPD ¶ 101 at 3 (dismissing pre-award protest as untimely where it was filed with the GAO more than 10 days after denial of agency-level protest, even though it was filed before the proposal due date).

The second lesson is that it's not always easy to know when an email to the contracting officer is actually an agency-level protest. Any written expression of dissatisfaction coupled with a request for some action could be interpreted as a protest – even if it is not labeled a protest, and even if the offeror has not consciously decided to "protest." And any written, oral, or actual adverse agency action in response to the offeror could trigger a 10-day GAO protest clock.

Takeaway: Seek legal counsel before sending the agency a communication that might be interpreted as an agency-level protest, and be sure you understand what effect an agency-level protest will have on filing deadlines at the GAO.

CSI Aviation, Inc., B-415631, B-415631.3, B-415631.4, Feb. 7, 2018 – Misrepresentation or Bait-and-Switch

In CSI Aviation, the protester challenged a task order award on various grounds, including that the awardee's quotation contained material misrepresentations.

With respect to the misrepresentation ground, the protester alleged that the awardee misrepresented its relationships with its proposed subcontractors – by claiming to have initial agreements in place with three air carriers, when the protester had exclusive teaming arrangements with two of those three carriers. This is a classic bait-and-switch allegation. See, e.g., Patricio Enterprises Inc., B-412738; B-412738.2, May 26, 2016, 2016 CPD ¶ 145 at 3; ACS Gov't Services, Inc., B-293014, Jan. 20, 2004, 2004 CPD ¶ 18 at 4. Where an offeror's proposal represents that it will perform a contract in a manner materially different from its actual intent, an award based on such a proposal cannot stand because both the offeror's misrepresentation and the agency's reliance on that misrepresentation have an adverse impact on the integrity of the procurement process. To prevail, however, a protester must show that a representation is both false and material – in other words, that "the agency relied upon [the misrepresentation] and it likely had a significant impact on the evaluation."

The GAO found no evidence of a material misrepresentation. First, the solicitation did not require offerors to provide any teaming agreements or other commitments from their intended carriers, and there was no evidence in the record that the agency credited the awardee with having done so. Second, although the record did not contain evidence of "initial agreements," it did demonstrate that the named carriers had provided the awardee with pricing information and other documentation for responding to the solicitation – so, there was no evidence that the awardee's statements were false. Because there was no evidence of a misrepresentation, an agency's reliance on the representation, or any impact of the representation on the award, the GAO denied the protest.

Takeaway: This case teaches two lessons. First, offerors should be scrupulously truthful in what they put in their proposals. Second, just because it appears that an awardee will not be able to perform exactly as proposed, that does not mean that a protester has a winning bait-and-switch protest.

Castro & Co., LLC, B-415508.4, Feb. 13, 2018 – Overly Restrictive Corrective Action

In Castro & Company, the protester challenged an agency's announced restriction on quotation revisions as part of corrective action following a protest. The agency issued an amendment requiring offerors to provide three full-time staff members to perform Task 3 and limited quotation revisions to the staffing plan for Task 3. Ordinarily, agencies have broad discretion in deciding on the details of corrective action and, where proposal revisions are solicited, may reasonably limit the scope of those revisions.

The protester here, however, originally proposed a staffing strategy that mixed personnel across all three tasks. By requiring three full-time employees to be devoted to Task 3, but prohibiting adjustments to the staffing of other tasks, the protester argued that it was unreasonably prevented from altering aspects of its proposal that were materially impacted by the amendment.

The GAO agreed: "As the agency may not prohibit offerors from revising related areas of their quotations which are materially impacted, we conclude that the agency's decision to limit quotation revisions to the extent that it has here is unreasonable."

Takeaway: This decision illustrates an important exception to the general rule that agencies are free to limit the scope of proposal revisions when they take corrective action following a protest. While agencies' discretion is broad, it is not unlimited, and offerors may object if an agency attempts to prohibit offerors from revising proposal areas that are materially impacted by the terms of the corrective action.

BAE Sys. Tech. Solutions, B-414931.2; B-414931.3, Dec. 20, 2017 – Minimum Experience Requirements

More frequently than one might expect, offerors fail to demonstrate that their personnel comply with minimum experience requirements set forth in solicitations. In a recent GAO protest, a disappointed offeror successfully challenged a task order award on this basis.

In BAE Systems, the solicitation required personnel to meet certain minimum experience standards. As relevant to the protest, several labor categories required personnel to have experience in specified "military occupational specialties," or their equivalents. Although the awardee's proposal repeated the solicitation language and stated that its personnel met those requirements, it did not specify whether its personnel possessed the military occupational specialty called out in the solicitation, or whether they possessed some other specialty that the awardee deemed to be "equivalent."

The protester argued, and the GAO agreed, that the awardee's failure to specify the experience its personnel were using to meet the minimum requirements prevented the agency from determining whether those personnel actually met those requirements. The GAO noted that the awardee might be relying on "equivalent" experience that the agency would not agree was "equivalent," and observed that the agency scrutinized the protester's claimed "equivalent" experience in that regard. The GAO sustained the protest and recommended that the agency reopen discussions and reevaluate revised proposals in accordance with the terms of the solicitation.

Takeaway: Offerors should take care that proposed personnel not only meet mandatory minimum requirements but also that their proposals contain sufficient information to demonstrate such compliance.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Victoria Dalcourt
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions