Link: GAO Decision
Protestor: Re-Engineered Business Solutions, Inc.
Agency: Department of the Army, Corps of Engineers
Disposition: Protest Denied.
- Protester’s allegations of bias with regard to a former agency employee provide no basis to sustain the protest where the allegedly biased employee left the agency before the final evaluation and source selection decision took place.
- Protest that agency misevaluated proposals is denied where evaluation was reasonable and consistent with evaluation criteria.
- Protest that agency held unequal discussions by raising issues with the protester that should similarly have been raised with the awardee is denied where protester did not demonstrate that it had been prejudiced by the more thorough discussions.
General Counsel PC Highlight:
Re-Engineered Business Solutions, Inc. (RBS) protested the award to Anderson Construction Company of a contract for operations, maintenance, and repair services, primarily in support of the recreational areas for boating, picnicking, and camping, at the Carters Lake Project Office in Oakman, Georgia. The RFP, set aside for HUBZone small businesses, contemplated award on a best value basis considering 11 technical/past performance evaluation having differing levels of significance. The agency conducted two rounds of discussions, after which it received proposal revisions from offerors. After RBS protested the initial award to Anderson, the agency took corrective action, holding an additional round of discussions and obtaining FPRs.
The GAO first denied RBS’s claim that the agency’s project supervisor, who functioned as lead technical advisor in the initial evaluation, was biased against RBS and had allegedly stated to employees of the incumbent that they should consider submitting resumes for employment by Anderson. It noted that the basis for the alleged bias consists primarily of oral reports by employees to supervisors, now retold to the GAO only by the supervisors, and that RBS had failed to show that the alleged bias affected the outcome of the competition. The GAO then agreed with the agency’s downgrading of RBS under the procurement methods factor, pointing out concerns that all procurement authority appeared to be in the hands of a single person. The GAO declined to sustain RBS’s many objections to its technical evaluation, finding that RBS merely disagreed with the agency’s evaluation. Finally, the GAO denied RBS’s challenges to the discussions, pointing out that the protestor had failed to show factual support that Anderson was provided more extensive discussions than RBS, and that RBS did not allege that the discussion caused it to revise its proposal in a way that harmed it in the evaluation.
In alleging that the agency was biased towards an awardee, a disappointed offeror must provide convincing proof. The GAO will not sustain a protest on the basis of inference or supposition; protestors must provide factual support that the agency officials possessed unfair or prejudicial motives. This is often difficult to prove, and is an area where the GAO not being an actual court can make the protest process less than equitable. There is often little than can be done so long as the offending contractor and agency are able to adequately hide their violation. Companies must remember that unless a protestor can demonstrate with factual evidence that they were prejudiced in the procurement by the bias, their protest will be denied by the GAO.