GAO: Protest Failed to Establish Legal Reason to Sustain

When protesting at GAO, it’s important to explain not only what you believe the agency did wrong, but also the legal significance of that departure.

That’s what Trinity Global Consulting learned recently when GAO dismissed its protest.

Trinity filed a bid protest against the Army’s decision to amend a solicitation seeking military identification card services. Trinity argued that the amendment disclosed Trinity’s proprietary information to its competitors.

The solicitation told offerors to propose Service Contract Act labor categories pursuant to their specific approach to the work. Trinity proposed to use the Personal Assistant II labor category to fulfill the duty of verifying official positions.

In the meantime, an investigator with the Department of Labor, Wage and Hour Division looking in to the work as it was then being performed, called the contract specialist about an investigation as luck would have it regarding the correct labor category for the verifying officials. After discussions, the Agency determined that, while they were currently in the category of Word Processor I, the correct category was Personal Assistant II, the category Trinity happened to propose.

The agency issued an amendment to the solicitation identifying those positions as SCA labor category Personal Assistant II. By that time, proposals had been submitted two months earlier.

Trinity protested, arguing that the amendment was based on its solution to the verifying official position and argued that the Army had revealed it proprietary information through the amendment. Trinity claimed to be the only offeror in the competitive range who had suggested that solution.

In a request for dismissal, the Army argued among other things that Trinity hadn’t described how the Army’s actions violated any procurement laws or regulations.

GAO agreed, saying that a bid protest is required to include “a detailed statement of the legal and factual grounds for the protest, and that the grounds stated be legally sufficient.”

GAO said “Trinity has failed to allege a cognizable basis of protest.” It said that Trinity had no evidence that the Army had relied on Trinity’s proposal for the amendment, that personal allegations against the contracting officer for bias were likewise unsupported, and dismissed the protest entirely. Said GAO:

In fact, the sum of the protester’s assertions—that the agency’s contracting staff was incompetent, and used Trinity’s proprietary information when it amended the solicitation on August 2, 2019—fail to reasonably establish a violation of procurement statutes or regulations by the Army. 

In short, without a compelling legal theory, a protest is just a story without an ending.

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