Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, June 29, 2012, 11:20am EDT – Last Modified: Friday, June 29, 2012, 1:48pm EDT
When the GAO recommends that contractors be reimbursed the cost of pursuing a successful protest it does not generally differentiate between successful and unsuccessful grounds. This is why many will recommend that a protesting company “throw everything against the wall and see what sticks.”
Protesting contractor: Blackstone Consulting Inc., Los Angeles
Contracting agency: Department of the Air Force (USAF)
Protest issue: Whether legal fees for the protest should be reimbursed in full.
Post-mortem: How many times have you said to someone, “I emailed that document to you last week” only to get that patronizing look of skepticism in return? That is exactly what happened in this case, but rather than end there, the situation found its way to the Government Accountability Office via a bid protest.
Blackstone protested the award of a contract for full food services at the Five Hats dining facility at Fort Meade in Maryland to Food Services Inc. of Gainesville. The solicitation informed offerors that best value would be determined by past performance history first, cost or price considerations second. Past performance was evaluated using a combination of self assessment and questionnaires, which were to be emailed directly to the agency.
Blackstone offered the lowest price, but its past performance assessment could not be performed, due to no past questionnaires being received by the agency. Blackstone challenged this claim, providing with its initial protest evidence that two questionnaires were sent to the USAF within the required time. During a subsequent search of USAF computers, the two past performance questionnaires were discovered and the agency agreed to take corrective action and reimburse — but only for the cost of protesting that one protest ground.
That wasn’t good enough to GAO, which found that Blackstones’s successful arguments were not “clearly severable” from its unsuccessful ones and therefore the agency should reimburse the protestor all its costs in pursuing the “clearly meritorious” protest. In other words, a win is a win.
Another lesson learned: Just because you hit the send button doesn’t mean that a person on the other end actually received the email, and when someone tells you that they did indeed email a document last week they just may be telling the truth.