Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest dismissed.
Protest is dismissed where original protest argument challenging a rating of technical unacceptability is abandoned, and subsequently-raised protest argument does not challenge the unacceptability rating.
General Counsel P.C. Highlight:
In its initial protest, Dependable argued that the Navy improperly determined that its proposal was technically unacceptable, based on the protester’s failure to submit the LWDIR and RIR data. The protester argued that although the RFP stated that the agency would evaluate each offeror’s safety record based on the EMR, LWDIR and RIR data, the RFP did not explicitly require offerors to submit this data. The Navy responded to this argument in its report on the protest, arguing that the RFP stated that offerors would be evaluated based on the three rates discussed above, and that offerors were responsible for providing all information required for the evaluation of proposals. Dependable did not address the Navy’s response to the protest concerning the failure to submit the LWDIR and RIR data. Instead, the protester raised a new argument, alleging that the agency unreasonably evaluated the protester’s EMR data. Because the protester’s comments did not address the agency’s response to the original protest argument concerning the LWDIR and RIR data, GAO considers this argument abandoned.
In its new protest argument, Dependable argues that the RFP stated that the Navy would consider offerors’ safety records for the last three years, and that the agency unreasonably considered information beyond that time in its evaluation of the protester’s proposal. Dependable submitted EMR for the years 2008-2000, which addressed data for the years 2006-1996. In its evaluation, the Navy considered Dependable’s EMR for 2007, 2006, and 2005, noting a high rate of 1.18% for 2005, with improvement in the succeeding years. Dependable argues that, because a given year’s EMR contains data for prior years, the agency should have only considered Dependable’s 2008 EMR of 0.84%, which contained data for 2006, 2005, and 2004. GAO concludes that Dependable cannot demonstrate that it was prejudiced by the Navy’s evaluation of the EMR data. The agency concluded that Dependable’s proposal was technically unacceptable because it did not provide the required LWDIR and RIR data. Although the protester initially challenged this evaluation, it subsequently abandoned this argument. The protest is dismissed.