Following GAO outcome prediction, the protester requested costs. The agency resisted, reasoning the protester had not raised a clearly meritorious argument. The agency thought the issue raised in the protest was a close question. Not so, said GAO.
Avon Protection Systems, Inc.—Costs, GAO B-421102.5
- First Protest – The protester filed a protest challenging an award. GAO said it would likely sustain. The agency took corrective action.
- Second Protest – The protester filed a second protest objecting to the corrective action. The protester complained the agency was only reopening discussions with the initial awardee but not with other parties. GAO held another ADR and stated it would likely sustain. The agency took corrective action again.
- Close Question – The protester requested costs for the second protest. The agency opposed the request, arguing the protest was not clearly meritorious because it presented a close question. Relying on GAO precedent, the agency argued that it’s not required to hold discussion with every offeror.
- GAO Rejects Agency Argument – Generally, when an agency reopens discussions, it must reopen discussion with all offerors. GAO has found an exception to this rule when one offeror has a single discrete issue under a single evaluation factor. But that exception didn’t apply to this case. The agency’s discussions were not tailored to a single issue; rather, the agency wanted to address 11 weaknesses with the awardee. Worse, some of these issues had been previously raised in an earlier round of discussions. Thus, the agency would have given the awardee additional chances to improve its proposal. The protester was entitled to costs.
The protester is represented by Jonathan D. Shaffer and Michael J. Maroulis of Haynes and Boone, LLP. The agency is represented by Stuart J. Anderson and Gwendolyn A Iaci of the Navy. GAO attorneys Anh-Thi H. Le, Michael P. Grogan, and Evan D. Wesser participated in the decision.
–Case summary by Craig LaChance, Senior Editor
