Protester Hits the Trifecta: Bid Protest Sustained, Denied, and Dismissed

GAO issued a bid protest decision that sustained a protest in part, dismissed it in part, and denied it in part. Contractors can learn from this that even if all the arguments do not work, all it takes is one.

High Noon Unlimited, Inc. protested the U.S. Marine Corps decision to buy rifle magazine pouches off High Speed Gear, Inc. There was a large difference in price between the two offerors, with High Noon offering approximately $2.2 million while High Speed charged just under $3.6 million.

High Noon made several initial arguments: First, that High Speed’s pouches did not meet the solicitation’s weight requirements; second, that the product did not meet the “ease of removal” requirement; and third, that the decision was based on “marine preference” which was, apparently, an undisclosed evaluation factor.

The Marines responded with an Agency Report that GAO found so heavily redacted that “the protester was not afforded an adequate record” to base its comments. As such, GAO asked the agency to provide a less guarded version and gave High Noon an extension on its comments deadline.

When High Noon filed its comments, it continued to make the first two arguments, but, according to GAO, dropped the third and replaced it with an argument that the agency should not have made an upward revision to the government estimate.

The agency argued that High Noon abandoned all of its protest grounds because the more nuanced and informed approach to the comments were actually new and untimely arguments. GAO disagreed. It said, “we conclude that two of High Noon’s arguments were advanced in its original protest and maintained in its comments; we therefore find that these two arguments were not abandoned and consider them on the merits.”

Ultimately the protest came down to a matter of scale. Well, the use of one, to be more specific. GAO determined that High Noon’s first argument had merit because High Speed’s product had been weighed without its modular lightweight load-carrying equipment clips. Had it been weighed correctly, it might have not met the weight requirements of the solicitation.

GAO said: “Since the record does not establish that the High Speed product met the RFP’s threshold requirement for weight, we conclude that the agency erred in finding that High Speed’s product is technically acceptable.”

The argument that the pouches could not be attached or removed without a tool, however, was not as effective, because the agency was able to attach and detach the pouch without a tool in under three minutes.

High Noon’s third argument, about the unreasonable adjustment of the estimate could have been viewed as a supplemental protest ground. But that means it would have been due 10 days after the protester learned of it. GAO is strict about supplemental protest deadlines.

In this case, the protester learned that the estimate had been adjusted from the first, heavily-redacted version of the agency report. Though GAO gave an extension to file comments, any supplemental protest grounds learned of from the first report would still have been due 10 days after they were learned. Because this argument was made 14 days after the initial agency report, it was, in GAO’s eyes, untimely.

Therefore, GAO sustained the first argument, denied the second, and dismissed the third.