GAO Dismisses Challenge to Brief Explanation of Award

Depending on the type of procurement, an agency will often provide either a brief explanation or debriefing after an award is made. But those explanations are difficult to challenge, as a recent GAO decision confirmed.

In the decision, GAO dismissed a protester’s challenge to the sufficiency of a two-paragraph explanation. Protester failed to show competitive prejudice or regulatory deficiency in the explanation. Since the protester could not demonstrate either of these conditions resulted from the explanation, GAO dismissed these allegations.

When protesting to GAO after receiving a brief explanation, what do you need to know in order to get your foot in the door? Let’s take a look.

In Colonna’s Shipyard, Inc.’s GAO protest (B-418896), the protester, as part of its argument that the Navy incorrectly made a best value determination, alleged the Navy failed to provide an adequate explanation of its award and failed to establish a competitive range and conduct discussions.

The Navy sought barge overhaul and inspection services at a naval yard in Virginia. The RFP advised proposals would be evaluated utilizing a best value determination. Offerors would be evaluated on past performance, technical capability, and cost/price. These criteria are ranked in the same order of importance, and performance and technical capability together, were significantly more important than price. The RFP also advised the Navy did not intend to establish a competitive range or conduct discussions.

Two offerors, Colonna and Lyon, submitted proposals for consideration. The Navy brought together a Technical Evaluation Board (TEB) to evaluate the proposals. During the TEB review of the proposals, concerns regarding Colonna arose. The TEB found prior issues with subpar subcontractors, maintaining original schedule, budgets, and noted Colonna submitted a safety instruction that was outdated (Since 2009!). Colonna received a letter of concern from the Navy in December 2019 related to its past performance.

After evaluating both proposals, the TEB found Lyon as the higher-rated proposal. The TEB found a safety instruction this far out of date reduced confidence in successful completion of the contract. When submitting proposals, take time to ensure all aspects of your proposal are up to date. Failing to do so could cause your proposal to stumble out of the gates.  The contracting officer next went to the cost/price proposals for each offeror. The Navy determined both proposals were significantly higher in cost/price than was estimated. On June 2, 2020, the Navy sent emails to both offerors asking they reconsider and revise only the cost/price of their proposals. Lyon chose to lower its price, Colonna did not.

The contracting officer made a final evaluation comparison of the two offerors:

After reviewing the two proposals, the contracting officer made award on June 23 to Lyon.  On July 1, 2020, the Navy posted the award to Colonna requested a debriefing, and on July 2, 2020, the Navy provided a short (two paragraph) explanation to Colonna.

Colonna protested, challenging the Navy’s brevity of explanation, best value analysis, and failure to clarify “minor” deficiencies through discussions. GAO, to say the least, was unimpressed with these challenges. It is worth noting, in its initial protest, Colonna did not challenge any error with the technical evaluation by the Navy.

The Navy submitted its agency report, listing its reasoning for paying the 13% price premium on a best-value analysis.

One part of the protest was dismissed by GAO. Colonna raised issues with the technical evaluation for the first time during the comments on the agency report. GAO found this was untimely, and dismissed any challenge to Colonna’s technical evaluation, as it should have been raised in the original protest. GAO reasoned that if there is a basis to challenge the technical evaluation in the protest, it must be filed in the initial protest, not have these arguments drag out and slowly develop over time.

GAO reiterated: an agency may select the higher-rated, higher-priced proposal as reflecting the best value to the agency where, as here, that decision is consistent with the evaluation criteria and the agency reasonably determines that the technical/past performance superiority of the higher-priced proposal outweighs the cost/price benefit provided by the other offeror.

Importantly, GAO also concluded that it cannot consider challenges to the adequacy of a debriefing or post-award notice. GAO nevertheless addressed the protester’s arguments concerning the adequacy of the brief explanation. GAO affirmed the adequacy of the two paragraph explanation finding, “[n]ot only did the agency’s brief explanation of award provide all the required information . . . and general reasons as to why the offeror’s proposal was not accepted, but the adequacy of a debriefing or post-award notice is a procedural matter that is not for consideration by GAO.” GAO found the adequacy question does not concern the validity of the award itself in this instance.

GAO also shot down Colonna’s challenge that it should have been allowed discussions. GAO found no competitive prejudice, which GAO says is necessary, in the ability of both sides to revise their cost proposals.

Boiling down the GAO decision, there are a few takeaways. First, GAO will not consider blanket challenges to brief explanations or short debriefings. Even if it did consider them, GAO requires a showing of competitive prejudice or failure to provide mandatory information to consider challenges in this arena. Second, make sure your initial protest includes all of your protest grounds. If you have reason to protest, develop the argument at the outset, waiting around can end up in dismissal as untimely. If you are going to challenge this determination, GAO is signaling you need to show something materially wrong with the determination. Lastly, this decision shows agencies have a long memory when it comes to government contracting. Ensure your proposal is up to date, do not leave in instructions that went out the door more than a decade ago. A defect like this in your proposal is like a big coffee stain on your shirt during an interview. Keeping your proposals up to date, and ensuring your past performance shines, not obscures, are the keys to getting your foot in the door in government contracting.

Questions about this post? Email us or give us a call at 785-200-8919.

Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedInTwitter and Facebook.