The agency requested reconsideration of a protest decision, arguing GAO had relied on inapposite cases. But GAO denied the request. GAO said it had not relied on the specific holdings of those cases. Rather, it cited those cases with the “cf.” introductory signal, indicating they were offered merely as an analogy to a general proposition.
Chenega Base & Logistics Services, LLC; Department of the Army—Reconsideration, GAO B-421451.5, B-421451.6
- Request for Reconsideration – A protester challenged the evaluation of its proposal. GAO sustained. The awardee and the agency both requested GAO reconsider the decision.
- Modification of Recommendation – The awardee asked GAO to reconsider its recommendation. GAO had recommended the agency reevaluate the protester’s proposal. The awardee argued GAO should’ve recommended a reevaluation of all proposals. The awardee reasoned any error in evaluating the protester’s proposal likely applied to the awardee’s proposal, too. GAO denied the request. While GAO recommended reevaluation of the protester, the agency was not prohibited from taking additional corrective action by reevaluating the awardee. At this point, the awardee’s argument was premature, merely anticipating improper agency action.
- Management Approach – The agency argued GAO made factual errors when evaluating the management approach. The agency contended GAO had ignored the SSA’s rationale in finding the awardee’s management approach superior. GAO did not think it had ignored the SSA’s rationale. Rather, it noted the SSA had assigned risk to the protester’s proposal, and the agency had not identified—either in the protest or in the request for reconsideration—any explanation for that risk.
- Post-Protest Explanation – The agency contended GAO had disregarded a post-protest explanation that explained the protester’s past performance rating. GAO responded that it had disregarded the explanation because it had not meaningfully responded to the protester’s argument, and the explanation was inconsistent with the evaluation record.
- Inapposite Law – The agency argued GAO committed an error of law by citing GAO decisions that relied on obsolete FAR provisions. But GAO noted it had not cited those decisions for their analysis of the underlying FAR provisions. Indeed, GAO noted it used “cf.” introductory signal in citing those provisions, indicating they were offered as an analogy supporting the general proposition that an agency’s evaluation conclusions must be documented and grounded in the proposal.
- Competitive Prejudice – The agency argued GAO had erred in finding the protester was prejudiced by the agency’s errors. GAO rejected this argument, noting that it was premised on a mechanical counting of strengths. If, as it’s supposed to, the agency looked behind adjectival ratings in reevaluating proposals, the protester would have a substantial chance at receiving award.
Mark G. Jackson and Stowell Holcomb of Jackson Holcomb, LLP represent the requester. Andrew J. Smith, Lieutenant Colonel MIchael T. Tingle, Jr., and John C. Degnana of the Army represent the agency. The intervenor is represented by Douglas L. Patin and Lisa A. Markman of Bradley Arant Boult Cummings LLP. GAO attorneys Michael Willems and Evan D. Wesser participated in the decision,.
–Case summary by Craig Lachance, Senior Editor
