Protester Goes Seven for Seven in Arguments Before GAO

Veterans of the bid protest process know that it’s not uncommon for a protester to make half a dozen arguments and prevail on only one.

Know what that’s called? A win. But when a protester goes seven for seven, you have to tip your cap.

In Leumas Residential, LLC B-418635 (July 14, 2020), the protester argued that the three deficiencies and four significant weaknesses the U.S. Navy assigned to its proposal were all flawed. GAO agreed.

First, the agency said that Leumas’s proposal showed on its face that Leumas did not intend to comply with the limitation on subcontracting. All the evaluation said was that the “subcontractor, ProDyn, LLC, is going to be gaining more than 50 percent of the work requirement.”

The parties’ teaming agreement had said that the subcontractor would “perform the mowing, tree maintenance, and landscape maintenance at a minimum.” The Navy argued that on its face that language indicated a lack of compliance.

GAO said no: “we cannot find the agency’s conclusions to be reasonable or properly documented. The language that the agency relies upon in the subcontractor/teaming arrangement does not, on its face, indicate that Leumas did not intend to comply with the requirement that at least 50 percent of the cost of contract performance incurred for personnel would be expended by Leumas.”

Next, the protester argued that it was unreasonable for the agency to give it a deficiency because it concluded that the proposal’s color coding indicated that the quality control manager and site safety/health officer would be off-site workers. The protester noted that the color coding was not defined in the proposal and nothing in the solicitation required offerors to explain that those two workers to be on-site, although they would be. GAO agreed with the protester, saying “To the extent that the agency made ‘inferences’ on these subjects, these inferences are not supported by the contemporaneous evaluation record.”

For the last deficiency, the agency said that the proposal failed to demonstrate knowledge of Virginia Department of Environment requirements because the proposal promised that the managers would familiarize themselves with the requirements and train workers. The Navy took this to mean that they were currently unfamiliar and untrained.

The protester pointed out that the solicitation did not require offerors to demonstrate knowledge of these environmental requirements. GAO agreed, saying “the record only shows that the agency assessed a deficiency because Leumas’s proposal did not demonstrate current knowledge of VDE requirements, which the agency asserts–but cannot demonstrate–was a requirement of the solicitation.”

That made the protester three for three on deficiencies challenged. Moving to significant weaknesses, things did not get better for the agency.

For example, the Navy had given Leumas’s proposal a significant weakness because it interpreted language in the proposed phase-in plan to mean that all employees were currently untrained. GAO said that the phase-in plan seemed to meet the minimum requirements and the “untrained” concern was only brought up during litigation and “the record includes no support for the agency’s now-articulated concern regarding Leumas’s alleged untrained workforce.”

The agency had also given Leumas’s proposal a weakness for lack of corporate oversight. The protester argued that the solicitation did not require direct corporate oversight of on-site managers. During litigation, the Navy explained that Leumas’s proposal indicated that it would “empower [its] project managers with the authority to act on behalf of the company to commit resources,” and this made the Navy think that Leumas was delegating all authority to the managers on site.

GAO rejected that argument noting that the evaluation documents didn’t say that: “While the agency reasonably might have found that the extent of Leumas’s proposed delegation of authority to its project managers was a flaw that appreciably increased the risk of unsuccessful contract performance, there is nothing in the contemporaneous evaluation record to suggest that this concern was the basis for the agency’s assessment of the significant weakness. Instead, the record shows only that the agency found that Leumas’s proposal failed to provide direct corporate oversight which was considered to be a significant weakness.” 

The next weakness was for a supposed lack of a pest control plan. The agency explained to GAO that in its view the proposal included “a long narrative about having certified pest control employees,” but that wasn’t good enough to be a “comprehensive work plan.” The protester argued that the Navy was again offering explanations for its evaluation which were not in the record. It said that the agency was putting words in the mouth of the evaluation board that “are entirely absent from and contradicted by the contemporaneous record.” 

If you’re keeping score, that made the protester six for six.

Finally, the agency gave the proposal a deficiency in the safety factor for supposedly providing no safety data for two of three years. In fact, for those two years Leumas had entered “0” meaning it had “no annual losses in insurance claims against its policy premiums; had no OSHA Days Away from Work, Restricted Duty, or Job Transfer occurrences; and had no recordable OSHA cases.” The Navy argued that it was unclear whether the rate was actually zero or if the “0” entered meant no data.

GAO said that nothing in the solicitation required an offeror to explain the rates provided and zero was an allowable answer. In fact, the “solicitation required an affirmative statement and explanation only if the offeror had no safety data for any particular year.” GAO again agreed with the protester (update: seven for seven).

It sustained the protest.

While winning on every issue brought before GAO—especially in such a technical protest—is unusual, it does show that GAO has little patience for certain agency actions, such as making assumptions about a proposal that are unsupported by the proposal, failing to document these assumptions, and shifting its rationale during litigation.

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