GAO: Protester Identity Must Match Offeror Identity

In order to protest a procurement at GAO, the protester must be an “interested party.” An interested party is an “actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by the failure to award the contract.”

But does the identity of the protester have to be the same as the offeror under the procurement? GAO recently offered some guidance on that question.

In Intermarkets Global USA, LLC, B-415969.2,B-415969.4, (2018), Intermarkets Global USA, LLC (IMG US) protested an award of a contract by the Defense Logistics Agency.

A company named Intermarkets Alliance submitted a proposal for the DLA contract. DLA asked Intermarkets Alliance some clarifying questions about its identity. Intermarkets Alliance explained it was a joint venture of two companies, Intermarkets Alliance (IMG) and USFI, Inc. The first company was referred to as “Intermarkets Alliance,” or “IMG Alliance,” or “IMG,” in the proposal, and the firm is a Jordanian Company registered in Jordan. The proposal further explained that “[e]ach of these companies may have a role in this solicitation and any resultant contracts – but all roles are executed under the umbrella of IMG Alliance or in the name of IMG Alliance.”

The DLA awarded the contract to a competitor. IMG US then filed a GAO bid protest. In response, DLA filed a motion to dismiss, arguing that IMG US, which filed the protest, was different than Intermarkets Alliance, which submitted the proposal for the procurement.

IMG US argued that it was an interested party because the proposal of  Intermarkets Alliance indicated it was “submitting the proposal on behalf of, and with authority from, all IMG companies.” IMG US explained that the owners of the IMG Companies had moved to the US and then created IMG US. Therefore, the “offeror submitting the proposal–the IMG companies–remains identical,” and the “only change is that the protesting entity–IMG US–is the current representative of the IMG companies in the place of [Intermarket Alliance].”

GAO did not accept the protester’s argument. Even if the resources or employees of the IMG Companies would be used to perform the contract, the protester has to be the same party that will be contracting with the government.  Here, the party that interacted with the government and held itself out as the offeror, even through the debriefing period, was Intermarkets Alliance, not IMG US.

GAO noted that “even after the creation of IMG US in November, 2016, there is nothing in the record to indicate any change in the identity of the proposed offeror, or any change in the proposed IMG Alliance Group of entities that would be performing the contract, or any change at all in Intermarket Alliance’s proposal.”

Nothing in the proposal or any documentation related to the proposal indicated that the offeror had changed from Intermarkets Alliance to IMG US, such as proof that IMG US was a successor in interest to Intermarkets Alliance. (One way to establish successor-in-interest standing is through a novation). Therefore, IMG US was not in privity of contract with the government and was not an interested party.

The take-home lesson from this decision is to be sure that the party filing the protest is the same party that made the offer on the solicitation. If not, be prepared to show how the protester is a successor in interest to the offeror, or the protest will stand a good chance of being dismissed.