Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, July 13, 2012, 1:10pm EDT
If you have to lose, is it better to lose by a little or by a lot? The latter might be easier to accept, but the former is often more difficult to protest.
Protesting contractors: Deloitte & Touche LLP, Arlington, VA
Contracting agency: Department of Homeland Security (DHS)
Protest issue: Whether the contractor’s past performance was properly considered.
GAO decision, June 27, 2012: Denied.
Post-mortem: At the Olympic trials for the 100 meters last month in Oregon, eight women ran a race where the first three across the finish line would get to represent the United States in London. But then something happened that had never happened in the history of track in the United States — the third and fourth place finishers tied. Even with a camera poised on the finish line taking 3000 pictures a second, judges could not determine who earned the spot on the Olympic team.
Similarly, in this contract award, Deloitte lost by what seems to be the slimmest of margins. According to the facts listed by the Government Accountability Office in the protest, Deloitte and Grant Thorton were tied in every non-price category but one, and on price, they were only 2.6 percent apart. But while Grant Thorton was rated as Highly Acceptable for past performance — the most important evaluation criteria — Deloitte earned an Acceptable rating. According to DHS, Deloitte had “capability and capacity to perform” with no more risk than would be expected from a “competent vendor.” But that wasn’t good enough.
On July 16, two of the fastest women in the world who tied last month will meet again in Oregon to face each other in an unprecedented runoff to determine who will represent the United States in the 100 meters. They are both incredible runners and either one will be amazing in London — but only one can win. It was not that Deloitte was incapable of doing the work. But someone had to win, and Grant Thorton’s offer was just slightly better.
If they had not been so close though, would Deloitte have protested? I have come to the conclusion that in contract awards it is easier to accept when you lose by a lot, and usually difficult to win a protest when you lose by just a little.