Beware “Great” Protest Arguments – They May Not Be So Great After All
February 16, 2015
By: Eric Whytsell
Offerors that have lost out on an important contract are highly motivated to identify protest grounds that can be used to challenge the agency’s decision. Their desire to overturn the award decision, coupled with information gleaned from their debriefing and other sources, often results in a number of potentially viable protest grounds. Additional grounds sometimes are identified later, based on the agency record. Regardless as to how they are identified, not all theoretically available protest grounds will apply in a given case. The recent decision in Computer Sciences Corporation, B-409386.2; B-409386.3 (January 8, 2015), reiterates the importance of this principle, here in the context of ensuring that protest grounds asserting evaluation missteps are clearly tied to the terms of the solicitation.
The case involved a challenge to the Department of the Treasury’s issuance of a task order to Northrop Grumman Systems Corporation (Northrop) under an existing indefinite delivery, indefinite quantity contract. Among other things, Computer Sciences Corporation (CSC) argued that the agency failed to properly evaluate the risks with Northrop’s proposed approach, which relied upon subcontractors to perform the vast majority (96.2%) of the work under the task order. According to CSC, if Treasury had taken the extent of subcontracting into account when considering the risks, Northrop would not have received as high a technical rating. On its face, this appears to be a persuasive attack on the agency’s decision: How could Treasury have ignored the risks inherent in that high level of subcontracting?
The answer? Easily. As the Government Accountability Office (GAO) found, the agency reasonably evaluated Northrop’s technical approach in a manner consistent with the solicitation. According to GAO, CSC failed to identify anything in the solicitation that would require the agency to downgrade Northrop’s technical proposal on the basis of Northrop’s reliance on subcontractors. Indeed, from GAO’s perspective, there was nothing in the request for technical and cost proposals (RTCP) to which CSC could point. The RTCP did make clear that the agency would consider whether each approach “demonstrates a clear understanding of the work to be performed, and outlines an effective, efficient, achievable approach for accomplishing the task order requirements within applicable time frames.” But the RTCP did not require offerors to describe how work would be allocated between the prime contractor and subcontractors, much less indicate that the extent of subcontracting would be considered in the technical evaluation.
Consistent with the RTCP, Northrop’s technical response described various best practices, methodologies and processes that the company intended to use to perform the task order, but it nowhere indicated the amount of subcontracting to be used. That information was instead included in Northrop’s cost proposal. Based on its review of the record, GAO concluded that Treasury reviewed Northrop’s technical proposal against the stated evaluation criteria and reasonably assigned a “Good” rating under that factor.
The decision on this issue was likely a closer call than a broad reading of the decision would suggest. GAO did feel compelled to explain that the record demonstrated that the agency was aware of and had appropriately addressed concerns about Northrop’s subcontracting during negotiation of the contract. But in the end, this decision reflects the reality that agencies have great discretion in establishing evaluation criteria, and their evaluation decisions are usually upheld as long as they follow the established criteria. Offerors considering a protest need to make sure their protest arguments are properly based on the evaluation criteria set forth in the solicitation – and then make that connection clear in their protest. Otherwise, those “great” arguments may be rejected out of hand.
Eric Whytsell is responsible for the contents of this article.
© 2015 Jackson Kelly PLLC