Agency Misreads Proposal; Contractor Wins GAO Bid Protest

“Everyone is entitled to his own opinion, but not his own facts,” said the late Senator Daniel Patrick Moynihan.

In a recently published bid protest decision, the GAO held that a procuring agency was not entitled to its own facts when it came to the contents of the protester’s proposal.  Because the proposal contained the very items the agency claimed were missing, the GAO sustained the protest.

The GAO’s decision in Grunley Construction Co., Inc., B-407900 (Apr. 3, 2013) involved a General Services Administration solicitation for the replacement of certain infrastructure at a federal office building.  The agency assigned a weakness to Grunley Construction Company’s final proposal, stating that Grunley “did not discuss within their revised technical proposal a shift transition plan,” and that “Grunley’s schedule did not include float, which explicitly does not take into account suspensions of work or demonstrate a proactive approach to unforeseen conditions, high project risk, change orders, and project mutability.”

After the GSA awarded the contract to a competitor, Grunley filed a GAO bid protest.  Grunley argued, in part, that contrary to the GSA’s statements, Grunley had in fact provided a shift transition plan and had included float in its schedule.  Grunley pointed to specific pages in its proposal containing these items.

Given the chance to respond to Grunley’s contentions, the GSA failed to meaningfully do so.  With respect to shift transition, the GAO wrote, “[d]espite the fact that Grunley pursued this issue in detail during this protest, the agency has not meaningfully explained, or even acknowledged, what appears to be an inconsistency in the SSEB Report.”  The GAO held, “we cannot find this aspect of the agency’s evaluation to be reasonable . . ..”

Similarly, with respect to float, the GAO wrote that “the agency, in responding to the protester’s arguments, has simply ignored the fact that the protester’s schedule included float in numerous instances . . ..”  The GAO sustained Grunley’s protest on this basis (although it denied a separate, unrelated basis of protest).

Grunley’s situation is not uncommon.  Agency evaluators sometimes simply miss or misread portions of an offeror’s proposal, resulting in inappropriate weaknesses or deficiencies.  The strange thing about the Grunley case is not that the agency misread Grunley’s proposal, but that the agency refused to take corrective action once its mistake was pointed out.  In my experience, agencies typically correct mistakes of this kind, rather than hoping that the GAO will allow the agency’s evaluation to stand on the basis of the agency’s “own facts.”

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