Link: GAO Decision
Protestor: Millennium Space Systems, Inc.
Agency: Department of the Air Force
Disposition: Protest Dismissed in Part; Denied in Part.
- A debriefing provided in a procurement conducted as a Broad Agency Announcement pursuant to Federal Acquisition Regulation (FAR) § 6.102(d)(2) and FAR § 35.016 does not fall within the exception to our general timeliness rules at 4 C.F.R. § 21.2(a)(2) (2012), because such a procurement is not a procurement conducted on the basis of competitive proposals, under which a debriefing is requested and, when requested, is required.
- Protest that agency applied unstated criteria in its evaluation of protester’s proposal is denied where the record reflects that the agency’s evaluation was consistent with terms of solicitation.
General Counsel PC Highlight:
Millennium Space Systems, Inc. protested the award of a contract to Orbital Sciences Corp. under a Broad Agency Announcement (BAA) seeking proposals to advance the state-of-the-art and scientific knowledge in space technology, with the primary objective of developing and delivering an “ESPA Augmented Geostationary Laboratory Experiment (EAGLE) Platform” spacecraft bus. The BAA provided that, based on the evaluation factors, proposals would be categorized into three categories, with Category I being recommended for acceptance. Category II included proposals that were “scientifically or technically sound” but required further development, and were considered recommended for acceptance, but at a lower priority than Category I. Millennium was rated Category II, but was not selected for award.
Orbital Sciences, as intervenor, argued that the protest was untimely, on the grounds that the debriefing exception to the GAO’s timeliness rules does not apply to BAA procurements, which are not procurements “conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.” The GAO concluded that FAR § 6.102(d) carves out BAA procurements from those conducted using “competitive proposals” and defines them as “other competitive procedures.” This carve-out is in line with the GAO’s conclusions that Brooks Act procurements conducted under FAR Subpart 36.6, as discussed in McKissack, and procurements conducted FAR Subpart 8.4, discussed in The MIL Corp., are not procurements “conducted on the basis of competitive proposals.” The GAO agreed that Millennium’s protest was not timely filed, noting that three of its four protest grounds were evident in the April 17 notice of non-selection.
With regards to the final, timely protest ground, the GAO disagreed that the agency’s consideration of innovation constituted an improper unstated evaluation criteria. It noted that the agency issued the procurement as a BAA, indicating that the agency had a requirement for “scientific study and experimentation directed toward advancing the state-of-the-art.” The GAO concluded that, in the context of a BAA, the consideration of the level of innovativeness in a proposal is intrinsic to the agency’s technical evaluation of the “overall scientific and technical merits of the proposal,” and was therefore not improper.
Firms who participate in procurements conducted through Broad Agency Announcements must remember that many of the procedures which apply to procurements conducted pursuant to FAR parts 13, 14, or 15 will not apply to their procurement. Firms must pay strict attention to deadlines, as they will not be eligible for the exception to the 10-day rule which applies to procurements based on “competitive proposals” where debriefings, if timely requested, are required. The failure to protest at the time a firm knows or should have known of the grounds for protest, even if the firm has not yet received a debriefing, will render a protest untimely.