Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Posted Date: Wednesday, March 13, 2013, 11:57am EST, Updated April 24, 2013
MVM, Inc., B-407779; B-407779.2, February 21, 2013
In the realm of bid protests, being correct does not always matter. This was a lesson learned recently by MVM, Inc., in its protest before the Government Accountability Office. In its protest, MVM made several challenges to an award by the Drug Enforcement Administration, made under a Request for Proposals issued May 3, 2012. Among the protest grounds raised by MVM, were arguments that the DEA: (1) improperly evaluated MVM’s proposal; (2) failed to conduct a proper cost/technical tradeoff decision; and (3) relied upon incorrect information in making the award decision. GAO denied the protest on all grounds, but it is the third argument that is of interest.
MVM demonstrated that the agency’s final evaluation report misstated the awardee’s rating for the security plan factor, the fourth of five technical factors listed in the RFP. MVM argued that the agency’s misstatement of the awardee’s rating for the security plan factor resulted in it relying upon incorrect information when making the award decision. GAO rejected this argument, even though the agency acknowledged that it did in fact misstate the awardee’s technical rating as noted by MVM.
GAO will not sustain a protest unless the protester can demonstrate a reasonable possibility that it was prejudiced by the agency’s actions. In other words, the protester has to show that if the agency had acted properly, it would have had a good chance of receiving the award. MVM was not able to demonstrate this in its protest. GAO noted that the source selection decision detailed the reasons that the awardee’s proposal was technically superior and worth the additional price over MVM’s proposal, but did not discuss or rely upon the awardee’s misstated rating under the security plan factor. Thus the agency successfully argued that the misstated technical rating played no role in the award decision.
This case is a good example of the importance of showing prejudice in a bid protest. It’s not enough to be correct, as MVM happened to be in this case regarding the misstated rating. To be successful, a protest must articulate exactly how the agency’s mistake resulted in the protester not receiving an award it otherwise had a substantial chance of receiving.