Agency: Department of the Air Force
Disposition: Protest Dismissed in Part and Denied in Part
Decided: May 7, 2018
Keywords: Bad Faith in Evaluation
General Counsel P.C. Highlight:
An allegation of bad faith on behalf of an agency or government employee requires specific facts and evidence. Simply arguing bad faith based on results or impact to the protester will not be successful. Agencies are presumed to act in good faith, and without evidence to the contrary, a protester will not succeed in a bad faith claim.
Summary of Facts
Trailboss Enterprises, Inc. (Trailboss) challenges the terms of the request for proposals (RFP) issued by the Department of the Air Force for training services in support of the Republic of Singapore Air Force (RSAF). Additionally, it challenges the award of the sole source contract to PLK Services, Inc. (PLK) to provide training services under a different solicitation during the gap between the expiration of the incumbent contract and the award of the new contract.
The Air Force provides training in fighter aircraft maintenance and flying operations to the Republic of Singapore Air Force (RSAF) personnel in Idaho. PLK Services, Inc. (PLK) was awarded sole source contracts for this work in both 2008 and 2012. In November of 2017, the Air Force issued a request for proposals (RFP) for a fixed price contract for training, with a base period of 6 months and four 1-year options. The RFP called for evaluation based on technical, past performance, and price. The technical factor had four subfactors, all of which would be evaluated on an acceptable/unacceptable basis. Past performance would also be scored on an acceptable/unacceptable basis. Finally, award would be made to the proposal with all acceptable ratings and the lowest price.
On December 20, prior to the submissions’ due date, Trailboss filed a protest arguing the lowest price technically acceptable basis was improper, the proposal requirements were unduly restrictive of competition, the solicitation was tainted by biased ground rules organizational conflict of interest (OCI) and that the agency acted in bad faith.
On January 19, the agency responded by suspending the solicitation to investigate the potential OCI, and the protest was subsequently dismissed. Separately, on January 18, the Air Force posted a proposed sole source award to PKL to ensure continued training after the pending expiration of the current incumbent contract. On January 29, Trailboss filed a protest challenging the proposed award.
On February 14, the Air Force found no OCIs and advised the solicitation was reinstated, with proposals due by February 20. On February 20, Trailboss timely filed a protest raising the same challenges.
Protest of LPTA
Trailboss first argues the use of a lowest-Priced, technically-acceptable (LPTA) award is inconsistent with guidelines set forth in a memo issued by a former Undersecretary of Defense from 2015. However, the GAO declines to examine the issue, explaining, “an agency’s compliance with internal guidance or policies that are not contained in mandatory procurement regulations is not a matter that our Office will review as part of our bid protest function.” Because the memo is not mandatory, the GAO will not review the issue.
Next, Trailboss argues the LPTA award criteria is in violation of a policy set forth in the National Defense Authorization Act (NDAA) for fiscal year 2017. The NDAA directed the Secretary of Defense to revise the Defense Federal Acquisition Regulation Supplement to limit the use of LTPA awards. However, these revisions have not yet been adopted, and further, the NDAA does not expressly prohibit the use of LPTA award criteria. As such, the protest fails on these grounds.
Protest of Solicitation Terms
Trailboss argues the proposal requirements are “unduly restrictive of competition.” Specifically, Trailboss argues the requirements are unreasonable and points to several requirements. For example, Trailboss argues rather than requiring qualified contacts at the time of submission, the agency should have allowed for contacts who may become qualified prior to starting the contract, or, in the alternative, permit retention of incumbent employees without identifying them. In each instance, a careful review of the requirements leads to the conclusion the agency set forth a reasonable basis for the proposal requirements. Thus, there is no basis to sustain the protest on this ground.
Organizational Conflict of Interest
Protester contends the terms of the solicitation favor the incumbent, PKL. Thus, Trailboss asserts PKL must have been involved in the development of the solicitation, which, of course, would be improper. However, the Air Force unequivocally stated the incumbent had no role in drafting the solicitation or the development of the source selection factors. While Trailboss insists on PKL’s influence, it provides no facts to demonstrate this. Based on the failure to provide facts to support its claim, this aspect of the protest is dismissed.
Trailboss argues the solicitation provides advantages to the incumbent, which is evidence of bad faith. The GAO finds “no merit to this argument.” Bath faith must be proven by convincing evidence agency officials had the specific and malicious intent to harm a protester. This is a very high bar. Government officials enjoy the presumption of good faith efforts. The GAO will not infer unfair or prejudicial motives. Trailboss failed to provide any evidence to establish specific and malicious intent, thus there is no basis to sustain the protest.
Inadequate Basis for Sole Source Award
Trailboss argues the sole source award was improper in that it lacked advanced planning and the agency did not solicit offers from others. A review of the agency’s decision was viewed as adequate given the circumstances. These circumstances include the agency’s willingness to perform a corrective action in response to the original protest filed by Trailboss. This does not reflect a lack of advanced planning. Further, given the impracticality of locating another firm to provide short term training, the justification for a sole source is sound.
Bad Faith in Sole Source Award
Trailboss separately argues bad faith in the proposed award of the sole source contract. Again, the GAO points out the protester does not identify a single fact or provide specific evidence to support its claim. Rather, it simply argues the agency acted in bad faith and with bias against the protester. Without evidence to support the claim, there is no basis to sustain the protest.
Protest Denied and Dismissed
Protest denied in part and dismissed in part.