Decided: January 19, 2022
Agency: Department of Defense
Disposition: Protest Dismissed
Keywords: Unacceptable Rating, Interested Party
A protestor must challenge every subfactor the agency finds unacceptable, not merely those subfactors that a protest believes are most favorable. This case highlights the importance of having counsel knowledgeable about bid protests to avoid costly mistakes like the one here. Companies should thoroughly evaluate the potential for success with any protest situation. The time, expense, and negative consequences associated with challenging your Government customer warrants a strategic evaluation between your executive leadership, capture, proposal, and legal teams. General Counsel has the experience and drive to assist clients with assessing award decisions, developing legal courses of action, filing either as an unsuccessful bid protestor or the awardee intervenor, litigating the protest, and developing post-decision lessons learned for more effective future business development practices.
Summary of Facts
AIS Engineering, Inc. protests the issuance of a task order to Artel LLC, under request for quotations (RFQ) No. 1520419, issued by the Department of Defense, Defense Information Systems Agency (DISA), for commercial satellite communications bandwidth services for the United States Space Force space test and training range.
The RFQ was issued on June 15, 2021, to holders of General Services Administration Federal Supply Schedule contracts. The RFQ established that task order award would be made on a best-value tradeoff basis, based on two evaluation factors: technical/management approach and price. The technical factor consisted of four equally-weighted subfactors: (1) space segment coverage and quality; (2) space segment capacity; (3) space segment reliability; and (4) information assurance. The RFQ also established that quotations rated as “‘unacceptable” in any evaluation area would be considered “ineligible for award and shall be excluded from further consideration.”
Seven vendors, including AIS and Artel, submitted final quotations by the closing date. Under the information assurance subfactor, AIS received an “unacceptable” rating, because the quotation didn’t meet the minimum requirements under the subfactor. After completing its evaluation, DISA made task order award to Artel. On December 20, the agency provided AIS with notice of task order award to Artel and AIS filed this protest.
Basis of Protest
AIS argues that the agency’s evaluation of its quotation and resulting award decision were improper, because: (1) the award decision was flawed as the agency converted the award decision from a best-value trade-off to a lowest-priced, technically acceptable selection process; (2) the agency’s evaluation of AIS under the space segment coverage and quality subfactor (subfactor 1) was unreasonable; and (3) the agency’s evaluation of AIS under the space segment capacity subfactor was unreasonable.
GAO explained that under the bid protest provisions of the Competition in Contracting Act of 1984, only an “interested party” can protest a federal procurement. To be an “interested party,” a protester must be an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. GAO explained that determining whether a party is interested involves consideration of a variety of factors, including the nature of issues raised, the benefit or relief sought by the protester, and the party’s status in relation to the procurement. Additionally, a protester is not an interested party if it is ineligible to receive award under the protested solicitation or if it would not be in line for award if the protest were sustained.
Here, GAO found that the record supports the agency’s assertion that AIS did not challenge the evaluation of its quotation under the information assurance subfactor. The solicitation expressly established that an “unacceptable” evaluation rating in any area would render the quotation “ineligible for award and [would] be excluded from further consideration.” AIS’s quotation was found to be unacceptable under the information management subfactor. Since AIS does not challenge the agency’s finding that its quotation was unacceptable and, thus, AIS is ineligible for award, AIS would not be in line for award even if the protest were sustained. Therefore, GAO concluded that AIS “lacks the direct economic interest necessary to be an interested party to otherwise protest the evaluation of its quotation or the resulting award decision.” GAO dismissed the protest.
Our Government Contracts Practice Group has extensive experience in government contract law, helping clients solve their government contract problems relating to the award or performance of a federal government contract, including bid protests, contract claims, small business concerns, and teaming and subcontractor relations. If you need more guidance or information, contact Craig Lawless, Senior Counsel in our Government Contracts practice area at General Counsel, P.C., 703-266-1865.