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

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Victoria Dalcourt
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