Request for reimbursement of protest costs is granted, where the agency had no ready defense for its inadequate review of the awardee’s potential OCIs and where the protester’s challenges to the evaluation of the awardee’s technical proposal were intertwined with its OCI allegations. GAO also explained that its decision to hold a litigation risk ADR, rather than an outcome prediction ADR, had no bearing on whether the protest grounds were clearly meritorious.
PricewaterhouseCoopers Public Sector LLP asked GAO to recommend that the Department of Defense reimburse its costs of filing and pursuing its protest of a task order awarded to RMA Associates, LLC for audit readiness and remediation services.
In its initial protest, PwC alleged that the awardee had an unmitigated impaired objectivity OCI that should have precluded the task order award. PwC also challenged the agency’s technical evaluation and claimed that that the agency’s improper evaluation resulted in disparate treatment and a flawed best value determination. In three supplemental protests, the protester continued to raise OCI allegations and questioned the reasonableness of the agency’s past performance evaluation and findings. Following an alternative dispute resolution teleconference, the agency filed a notice of its intent to take corrective action, and GAO dismissed the protest as academic.
DoD disagreed that PwC’s allegations were clearly meritorious since the GAO attorney conducted a litigation risk ADR and not an outcome prediction ADR. GAO acknowledged the difference between the two forms of ADR, but stated that that this difference had no bearing on whether the protest grounds were clearly meritorious. In fact, GAO noted that its willingness to provide an outcome prediction is generally an indication that the protest is viewed as clearly meritorious
During the protest, the agency maintained that any finding that the awardee had an unmitigated OCI would conflict with the terms of the RFQ, which authorized the creation of contractor teaming arrangements for the express purpose of avoiding OCIs. However, GAO found nothing in the RFQ supporting this assertion. GAO noted that the mere existence of a CTA does nothing to mitigate possible OCIs and that there was no evidence the agency considered anything other than the CTAs when it assessed potential OCIs. Because the agency had no legally defensible position, GAO found this protest ground to be clearly meritorious.
In response to PwC’s allegation that the awardee failed to meet the material requirement for its audit work to meet certain independence standards, the agency argued that there were no such requirements in the solicitation. However, GAO found the protest ground was clearly meritorious because the plain language of the solicitation and the awardee’s proposal contradicted the agency’s position. The RFQ required offerors to comply with recognized accounting standards that emphasize the importance of the independence of the audit organization and individual auditors, and the awardee’s quotation made numerous references to independence, frequently in the context of avoiding OCIs. Therefore, GAO also found the allegation that the agency failed to consider the awardee’s ability to perform the task order in accordance with the RFQ’s independence standards to be clearly meritorious.
As to the technical evaluation challenges, GAO noted that the agency elected to respond to the initial and supplemental protests rather than take corrective action, meaning that the agency’s action was unduly delayed. GAO also explained that PwC’s challenges to the agency’s technical evaluation related directly to the protest allegations that the agency did not reasonably assess whether the awardee had an impaired objectivity OCI. GAO reasoned that because the technical challenges were not readily severable from the issue of whether the awardee had an OCI, it would recommend that the protester be reimbursed costs with respect to all issues presented and pursued.
PricewaterhouseCoopers Public Sector, LLP is represented by Paul A. Debolt, Emily A. Unnasch, Michael T. Francel, and James Y. Boland of Venable LLP. The government is represented by April Breck of the Department of Defense. GAO attorneys Kenneth Kilgour, and Laura Eyester participated in the preparation of the decision.
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