Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Request denied in part, dismissed in part.
General Counsel P.C. Highlight:
GAO considered the request of Threat Management Group (TMG), that GAO recommend that it be reimbursed the costs of filing and pursuing its protest challenging the Department of the Air Force’s award of a contract to R3 Strategic Support Group, Inc. (R3), under a request for proposals (RFP), for explosive ordnance disposal support services.
The solicitation anticipated the award of a fixed-price, indefinite-delivery/indefinite-quantity contract based on an evaluation of the offerors’ technical proposals, pricing, and past and present performance history. Award was to be made to the proposal that represented the “best value” to the government, beginning with a pass/fail technical evaluation of proposals under three subfactors: (1) project plan; (2) quality control plan; and (3) staffing plan. Then, starting with the lowest-priced technically acceptable proposal, the agency was to consider the offeror’s recent and relevant performance and to assign a performance confidence rating of substantial confidence, satisfactory confidence, limited confidence, no confidence, or unknown confidence. If the lowest-priced technically acceptable proposal was judged to have a substantial confidence rating, that proposal would represent the best value for the government and the evaluation would stop at that point; award was to be made to that offeror without further consideration of any other proposals.
TMG filed a protest arguing that R3 had an unfair competitive advantage because the firm’s proposed program manager was a current government employee with responsibilities for the agency’s explosive ordnance disposal (EOD) program. TMG next argued that the agency unreasonably found R3’s proposal technically acceptable because R3 could not have proposed the level of staffing that TMG believed necessary. TMG finally argued that the agency unreasonably assigned R3’s past performance a substantial confidence rating because, TMG alleged, R3 lacked relevant past performance for a certain portion of the performance work statement (PWS).
In its comments to the agency report and supplemental protest, TMG introduced documentary evidence for its allegation that the government employee in question had access to non-public information. In response to the supplemental protest, the agency informed GAO that it intended to take corrective action and reassess the allegation of competitive advantage.
Before the agency took corrective action, TMG filed a request that GAO recommend that it be reimbursed the reasonable costs of filing and pursuing its initial protest, including attorneys’ fees. TMG argued that all of the above allegations were clearly meritorious, and the Air Force’s corrective action was unduly delayed because it was filed after submission of the agency report. The Air Force does not object to reimbursing TMG the reasonable costs of filing and pursuing its protest grounds related to the evaluation of R3’s past performance, and therefore, GAO dismissed this aspect of the request as academic.
The agency, however, opposed TMG’s recovery with respect to the remaining protest grounds–TMG’s unfair competitive advantage allegation, as well as its challenge to the technical evaluation. Because the allegations are readily severable from the past performance issues–the questions involved distinct aspects of the record, and were not intertwined factually or legally–GAO had to assess whether the allegations were clearly meritorious. GAO first found that the individual in question signed a conditional letter of intent to work for R3 in June 2012, just prior to the time R3 submitted its proposal, but remained a government employee at all times relevant to the protest and did not, in fact, begin employment with R3 until 2013. TMG never alleged that the offeror, R3, had access to competitively useful, non-public information, and never alleged that the individual in question participated in the preparation of the firm’s proposal. The facts, showing that the individual had only indicated an intention to work for the offeror in the future, without more, do not support a conclusion that the alleged unfair competitive advantage was clearly meritorious.
GAO also concluded that TMG’s allegation concerning R3’s staffing was not clearly meritorious. A review of the record showed that the agency’s response to TMG’s protest allegation–that R3 could not have proposed the number of personnel TMG thought necessary–was legally defensible. Moreover, the arguments in TMG’s comments–that the agency did not specifically find that the number of personnel proposed by R3 was sufficient–raised new concerns. GAO required the agency to provide additional explanations in response to the comments in recognition of the different nature of the allegations. GAO stated that it does not regard a protest as clearly meritorious where, as here, resolution of the protest required further record development to complete and clarify the record.