GAO Dismisses Protest Where Proposal was Unacceptable

In a protest before GAO, prejudice is an essential element. Even if GAO might agree that an agency’s action was improper, it will not sustain a protest where the protester would not have received the award anyway.

That’s what happened in the protest of Benaka Inc., B-416836 et al. (Dec. 16, 2018).

Benaka, a New Jersey small business, had protested the award of a contract for the construction of a fuel cell/corrosion control facility for the New Jersey Air National Guard 177 Fighter Wing in Egg Harbor Township, New Jersey, to Ranco Construction, Inc., another New Jersey small business.  

The solicitation explained that there would be three factors: technical, past performance, and price. The first two would be evaluated on a pass/fail basis and receive a rating of either acceptable or unacceptable.

The technical instructions called for offerors to provide a construction schedule with “a maximum of 30 activities and milestones.” Benaka’s schedule was far more detailed than that. The evaluators found that it “included all the required items, but listed 163 individual tasks.” Because the schedule was supposed to be capped at 30, the National Guard found the proposal unacceptable.

Benaka’s price was $10.3 million. The award eventually went to Ranco at a price of $12 million.

While Benaka admitted its schedule listed 163 items, it explained that this included the required elements: 16 bulleted milestones, and seven additional milestones (each corresponding with a contract option). The other items simply detailed the “critical path methodology and showing integrated and networked multi-layered schedule or program projects/tasks, events, accomplishments, and criteria, and the expected dates of each.” In other words, Benaka chose to add extra detail to explain precisely how it would do the work.

But that is not how the National Guard saw it. Evaluators said they found the plan “confusing” and, regardless, it included far more than the 30 tasks allowed. The National Guard thus eliminated Benaka from competition.

Benaka protested its exclusion, arguing that it was unreasonable. Benaka also argued that Ranco should have been unacceptable as well, as Ranco’s plan failed to discuss demobilization (as was required by the solicitation).

GAO denied Benaka’s technical protest, finding that the agency’s decision to exclude Benaka’s proposal from competition was not unreasonable—Benaka did not follow the solicitation’s requirements, so the National Guard justifiably found it unacceptable. As a result of this unacceptability, GAO found that Benaka did not have standing to challenge Ranco’s award and dismissed the challenge to Ranco’s proposal; even if there was an error there, it would not result in Benaka becoming the awardee.

The logic of this outcome is sound, but the result is unfortunate. In its effort to provide the agency with a detailed proposal, Benaka actually violated the solicitation’s requirements and, in so doing, gave the agency cause to find its proposal unacceptable. As a result, the agency (and taxpayers) ended up paying more money for Ranco’s effort—even though, arguably, Ranco’s proposal also did not meet the solicitation’s requirements.

Benaka confirms that offerors need to be sure to comply with the solicitation’s requirements. If not, their proposal might be found unacceptable and skipped over for an award.