Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, April 13, 2012, 11:25am EDT
Most commercial businesses would cringe at the prospect of spending months and tens of thousands of dollars submitting an offer and winning a contract, only to then wait several years just hoping that you will eventually get to do the work. And yet, it happens – at times as a result of inadequate response from the agency.
Protesting contractor: Emergence Group Advisors LLC, d/b/a The Emergence Group, D.C.
Contracting agency: State Department
Protest issue: Whether the winning contractors complied with the requirements in the solicitation
GAO decision, Feb. 29: Sustained.
Post-mortem: The facts in this decision are a great example of what sets government contracting apart from the commercial world.
Here’s the rundown.
The initial proposals for this requirement were due on June 8, 2010. In February 2011, as a result of the first protest TEG filed along with several other local firms, State took corrective action, which resulted in the Government Accountability Office dismissing the protests. After obtaining revised proposals, State again did not award a contract to TEG. In response, TEG filed a second protest on June 7, 2011, arguing that that the evaluation of the past performance conducted by the agency was unreasonable and inconsistent with the solicitation. GAO agreed and sustained the protest. Without obtaining revised proposals, State reevaluated the proposals and again awarded to the same list of firms — which did not include TEG.
The third protest was filed by TEG again arguing that State failed to reasonably and consistently evaluate past performance according to the terms of the solicitation. Basically, the solicitation required a specific kind and number of examples of past performance and only TEG complied with that requirement. Even after holding a hearing, which only happens in about 10 percent of all protests, State could not explain why the awardees were given contracts even though their past performance did not satisfy the requirements of the solicitation. Nor could the agency explain why TEG, the only offeror who did satisfy the requirements, was not awarded the contract.
Sadly for all the firms in this case, this is far from over. The culprit here is not the contractors, it is State for not taking the appropriate steps to correct errors in its solicitation that were pointed out over a year ago, and ignoring the repeated recommendations of the GAO.