Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Technical evaluation
General Counsel P.C. Highlight: A protester must show not only that the Agency made material errors in the evaluation of an awardee’s proposal, but that these specific errors also prejudiced the protest cutting off its chance for award. If agency errors do not rise to that level, the GAO will not sustain the protest.
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The Department of the Army issued a solicitation under the Foreign Military Sales program (FMS), to provide support services for the Saudi government, Royal Saudi Land Forces Aviation Command. Two offerors bid on this solicitation: Alsalam Aircraft Company, the incumbent, and DynCorp International LLC. The Army found the DynCorp proposal to be technically superior to Alsalam and lower in price and thus awarded the contract to DynCorp. Alsalam’s protest followed.
The RFP warned offerors that they would need to provide a 60 day transition plan and that it could take up to 6 to 8 months for a new contractor that was not already registered in Saudi Arabia to obtain the required permits for performance of this work. Despite this warning, DynCorp proposed to register in Saudi Arabia, obtain the necessary permits, and complete the transition within 60 days. Alsalam protested that the DynCorp proposal was inconsistent with the stated warning in the RFP and that the Army had not conducted a proper cost analysis of the DynCorp proposal. During the protest, the GAO attorney assigned to the case conducted “outcome prediction” alternative dispute resolution (ADR) and determined that it was likely Alsalam’s protest would be sustained. The Army decided to take corrective action by reevaluating the two proposals with regard to the two premises for Alsalam’s protest.
The Army reevaluated the proposals and subsequently reaffirmed its award to DynCorp; Alsalam then protested to GAO again, alleging the same grounds.
In its re-evaluation of DynCorp’s transition plan, the Army consulted with several U.S. government subject-matter experts related to the question of obtaining work permits in Saudi Arabia. Based on these consultations, it determined that the RFP warning had been in error and that DynCorp’s proposed transition could be achieved within the required time. GAO held that the Army had reasonably relied on the information provided by the experts and concluded that the reevaluation of DynCorp’s proposed transition was reasonable. In addition, the GAO found that the erroneous warning did not prejudice Alsalam because Alsalam as the incumbent did not propose a transition plan or any costs associated with the transition.
Alsalam’s second argument claimed that the Army failed to reasonably evaluate DynCorp’s cost proposal. While the GAO agreed with Alsalam, stating that the record did not sufficiently establish that the Army had reasonably evaluated the costs, it declined to sustain the protest on this basis because, here as well, there was no prejudice to Alsalam. Had the Army adjusted upwards the Dyncorp cost proposal, it would have remained lower than Alsalam’s proposed costs. Because Dyncorp remained technically superior, and low cost, the cost evaluation errors did not prejudice the protester. For the above reasons, GAO denied Alsalam’s protest.