GAO: We’re Not Wrong, But Our Original Recommendation Was Not Right

Whenever GAO issues a bid protest decision, some parties are happier than others. In limited circumstances, however, an unhappy party may petition GAO to reconsider its decision if the outcome was based on errors of either fact or law. It is extremely rare for GAO to reverse itself during a reconsideration request. That may explain why in a recent reconsideration decision, GAO maintains that its decision was correct based on the facts presented to it, but GAO nevertheless modified its recommendations substantially in the face of new facts. As a kicker, GAO also took away its recommendation that the agency pay protester’s attorney fees.

Like stage play, today’s story went through two distinct acts.

Act One: The Protest

The story begins with GAO’s decision in AlliantCorps, LLC, B-417126.3 et al. (Comp. Gen. Feb. 27, 2019). There, a Task Order Request was issued by GSA under the small business pool of its Alliant Government Wide Acquisition Contract. The Task Order Request sought network services and support for the military health system.

Proposals responding to the Task Order Request were to include past performance examples that demonstrated the offeror’s experience with projects of similar size, scope, and duration. With respect to similar duration, it was defined as “a requirement that has at least been ongoing for more than one year, has had at least one (1) option exercised, and at least one (1) [Contractor Performance Assessment Reporting System (“CPARS”)] evaluation has been completed for the first year.”

During the question and answer period, one offeror sought clarification regarding the CPARS requirement under the similar duration evaluation criteria. The offeror’s concern was that a prospective offeror’s contract option could have been recently exercised, but no CPARS evaluation recorded. In response, GSA amended the Task Order Request to accept past performance questionnaires under the following circumstances:

The Government will accept a past performance questionnaire on experience where an offeror performed over one (1) year on a project and had one (1) option exercised, if an annual [CPARS] evaluation was not completed for that base year and the end of the base year was not more than four (4) months (120 days) prior to the [Task Order Response] due date[.]

Thus, GSA amended the Task Order Request to provide a narrow grace period for CPARS submissions on contracts for which the option period was recently exercised.

In response to the Task Order Request, GSA received 7 proposals. After a comparative evaluation, GSA selected SBD Alliant, LLC as the apparent successful offeror.

An unsuccessful offeror, AlliantCorps, LLC, protested the award. Among AlliantCorps’ numerous arguments was the allegation that one of SBD’s evaluated past performance examples failed to meet the Task Order Requirement’s stated definitions.

Specifically, SBD’s third past performance example lacked a CPAR for the base year, despite being in its third option period. Consequently, SBD’s past performance example did not meet the Task Order Requirements definition for similar duration, which required a CPARS evaluation to be completed for the base year. Since SBD was performing its third option period under the past performance reference, it also could not claim to qualify under the 120-day grace period where a past performance questionnaire would have been accepted in lieu of a CPARS evaluation.

GSA responded that SBD’s proposal was compliant with the Task Order Request past performance criteria due to SBD’s long length of performance. To the extent a CPARS evaluation was required, GSA argued, any error did not impact the ultimate award decision.

GAO agreed with AlliantCorps, and concluded “the agency improperly relaxed the applicable past experience requirement.” GAO explained as follows:

[T]he [Task Order Request] clearly advised vendors that a contract would be considered similar in duration only if it had at least one CPARS evaluation completed for the first year. GSA later advised vendors that it would accept a past performance questionnaire, rather than a CPARS evaluation, if the contract was still within 120 days of the end of the base year. The agency, however, never advised vendors that this 120 day period would be waived if GSA felt that the example otherwise met the solicitation’s duration requirements.

Moreover, as Alliant Corps’ senior vice president explained in a sworn declaration, AlliantCorps would have revised its submission had it known GSA intended to relax the past performance requirements. As such, GAO found the relaxation of the requirement to be prejudicial to AlliantCorps and sustained the protest. GAO recommended GSA clarify its needs, make any revisions necessary to the Task Order Requirement and reevaluate offerors accordingly. AlliantCorps was also awarded its attorney’s fees.

GAO’s decision in AlliantCorps, however, was not the end of the story.

Act Two: Reconsideration

After GAO published its decision, the GSA contracting officer (miraculously) “remembered that [he] had properly modified the restrictive CPARS/PPQ requirement through [Task Order Requirement] Amendment 3[.]” Importantly, Amendment 3 completely eliminated the requirement that past performance examples include a base year with a completed CPARS evaluation, as well as the 120 day grace period. Amendment 3 was 2 pages long, and the CPARS elimination was only on the second page—no reference was made to the requirement change on the cover page.

Inexplicably, only the Amendment 3 cover page was included in the Agency Report in the AlliantCorps protest. Additionally, none of the parties recognized this error and brought it to the attention of GAO during the briefing of the AlliantCorps protest, despite the fact that the amendment was publicly posted on GSA’s e-Buy system. As such, GAO’s decision in AlliantCorps was premised on mistaken facts.

Given that GAO’s decision to sustain AlliantCorps protest relied on misunderstandings of fact, both GSA and SDB requested that GAO reconsider its decision. Accordingly, the story entered its next phase in General Services Administration; SBD Alliant, LLC—Reconsideration and Modification of Remedy, B-417126.5 et al. (Comp. Gen. Aug 23, 2019).

While it did not say so directly, it’s evident GAO was not impressed that all three parties to the litigation had failed to identify that the copy of Amendment 3 the agency provided in its Agency Report was incomplete. As GAO noted, “[i]t is also clear that none of these parties provided to our Office—or made arguments based on—the complete text of the amendment, which might have avoided the outcome here.”

Frustration aside, GAO explained that “[i]n order to provide a basis for reconsideration, additional information not previously considered must have been unavailable to the requesting party when the initial protest was being considered.” In this respect, there was no basis for revising GAO’s decision in AlliantCorps. Each of the parties had access to Amendment 3 through GSA’s e-Buy system and could have moved for the full Amendment 3 to be entered into GAO’s record. That none of the parties thought to do so was not enough to merit reconsideration, so far as GAO was concerned. As such, GAO stood by its decision in AlliantCorps because each of the parties bore responsibility for the failure to complete the record.

Nevertheless, GAO realized that Amendment 3 effectively eliminated the need for its recommended corrective actions. As such, it rescinded its recommendation that GSA clarify its needs, revise the Task Order Request, allow for resubmission of proposals, and reevaluate offerors. GAO also stripped AlliantCorps of its litigation costs.

So, while GAO did not reconsider its decision, it essentially mooted its outcome.

Ultimately, the AlliantCorps saga demonstrates how small oversights can have substantial impacts on contract awards. Three separate parties overlooked the fact that GAO’s record did not contain a complete copy of Amendment 3. This oversight, once uncovered, led GAO to erase both its recommended remedy and costs. In the world of increasingly complex solicitation documents, these types of errors are bound to arise.