GAO Confirms You Cannot Challenge Another Offeror’s Inclusion in the Competitive Range

An offeror in the competitive range cannot protest another offeror’s inclusion in the competitive range, according to GAO. In a recent decision, GAO dismissed an offeror’s protest as premature when both offerors were included in the competitive range. 

After a series of protests and corrective actions, GAO recommended to include a previously excluded offeror in the competitive range for consideration. The competing offeror protested this inclusion, and GAO dismissed the protest.  

Why would GAO dismiss this protest?  Here is what you need to know. 

In, ICI Services Corporation, B-418255.4 (Sept. 23, 2020), ICI Services Corporation and Alion Science and Technology Corporation each submitted proposals for a solicitation issued to holders of the Navy’s Seaport-Next Generation Indefinite delivery, indefinite-quantity (IDIQ) contracts. 

Four offerors, including ICI and Alion, submitted proposals by the closing date. The Navy initially did not establish a competitive range. After submitting its proposal, Alion sold its naval systems business unit to Serco, Inc.   

The Navy initially made the award to Alion; ICI protested to have the award overturned. The Navy took corrective action, excluding Alion from the award. It is worth noting, the Navy did not establish a competitive range until a later corrective action. Then, Alion protested its exclusion, and another corrective action was taken. The Navy, 6 months after its initial award to Alion, established a competitive range and put Alion back in the running.  

When ICI found out that Alion was let back in, ICI submitted a new protest. ICI didn’t want the Navy to talk with Alion, alleging Serco would negotiate in place of Alion. ICI believed Alion could not be considered, even in discussions. GAO disagreed, and dismissed ICI’s protest.

It was a frustrating series of events for ICI and Alion alike, filled with ups and downs.  

The end result was that GAO dismissed ICI’s protest of Alion’s re-inclusion in the competitive range. How can that be? 

The key factor for GAO to deny ICI’s protest is the nature of the Navy’s corrective action, which placed Alion back into consideration, but didn’t award Alion the contract. Instead, the Navy’s corrective action said it was now going to conduct discussions with offerors in the competitive range, including Alion. At the time ICI filed its protest, ICI and Alion were both still in the running. This, according to GAO, made the protest premature.  

Using this distinction, GAO found no basis to review ICI’s allegations at this time, writing, “[t]he determination of whether a proposal is in the competitive range is principally a matter within the sound judgment of the contracting agency.” GAO then said, in essence, the agency’s decision of which proposals are within a competitive range is a preliminary decision, not subject to GAO’s bid protest jurisdiction.  

The GAO explained, “ICI’s protest also puts the cart before the proverbial horse:  having determined, of its own accord, that Alion lacks the requisite assets to perform the contract and that Serco is not an eligible successor-in-interest to Alion, ICI contends that it is therefore impermissible for the Navy to conduct discussions with Alion and obtain additional information that would permit the agency to make such a determination.”  

The good news for ICI, of course, is that even though its protest was dismissed, it was still in the running, and could receive the award. Further, the fact that GAO dismissed the protest wouldn’t prevent ICI from filing again if Alion was declared the awardee.  

GAO’s timeliness and jurisdiction rules can be confusing and complex, but at least one point is clear from ICI: under facts like those in this case, one offeror in the competitive range cannot protest another. 

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