Link: GAO Decision
Protestor: Commandeer Construction Company LLC
Agency: Department of Veterans Affairs
Disposition: Request for Reconsideration Denied; Recommendation Modified.
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GAO Digest:
1. Agency’s request to reconsider our decision sustaining a protest is denied where agency’s request either reiterates arguments made previously and merely expresses disagreement with the prior decision, or is based on information that was available to the agency during the course of the underlying protest, but was not brought to GAO’s attention until the request for reconsideration.
2. GAO modifies its recommended remedy that the agency reimburse the protester’s costs of pursuing its protest, where the record shows that the protester failed to disclose a material fact concerning its status as interested party
General Counsel P.C. Highlight:
The Department of Veterans Affairs (VA) requested that the GAO reconsider its decision sustaining the protest by Commandeer Construction Company LLC (CCC) of the rejection of its bid by the VA to provide renovation of an existing medical facility in Chillicothe, Ohio. The solicitation had been set aside for service-disabled, veteran-owned small businesses (SDVOSBs), and provided that the awardee must “[be] verified for ownership and control and [be] so listed in the [VIP] database.” The solicitation also included a deviation providing for fast track verification for an “apparently successful offeror” not already listed in the VIP as verified. CCC’s application for inclusion in the VIP was pending at the time of its offer and it argued that the deviation made it eligible for fast track verification. The GAO held that the deviation clause was latently ambiguous, sustaining CCC’s protest and recommending that its SDVOSB status be determined and award be given to CCC if appropriate.
On reconsideration, the VA argued that the GAO’s decision was inconsistent with its decision in FedCon RKR JV LLC, B-405257, Oct. 4, 2011, 2011 CPD ¶ 205, and that the GAO failed to give deference to the VA’s interpretation of its own regulation. Because the VA simply reiterated arguments made prior to the GAO’s initial decision, the GAO declined to reconsider its prior decision. The VA also argued that the fact that CCC failed to extend its bid past the deadline while the bid protest was ongoing, and was subsequently denied SDVOSB status, merit reconsideration by the GAO. The GAO responded that both of these facts were known to the VA prior to the issuance of the initial GAO decision, and thus the VA failed to raise any arguments that satisfy the standards for reconsideration. Because CCC failed to notify the GAO of the rejection of its SDVOSB status, while proceeding with the bid protest and ADR, the GAO modified its earlier decision to remove the recommendation that CCC be reimbursed for costs.
Where a change in circumstances occurs in the midst of the bid protest process that would cause a protestor to no longer be an interested party, the protestor should take appropriate steps to notify the contracting agency as well as the GAO. Although such notification is not required, it prevents the GAO from expending unnecessary time and resources in rendering a decision that is no longer necessary. Maintaining good relationships with the agencies with whom you are in constant contact is an essential component in government contracting, and leading these agencies to waste time and resources can damage ongoing relationships.