Protest alleging that agency failed to consider information required by the solicitation is sustained. The protester alleged the agency failed to consider a Q&A session held with offerors after an oral presentation. The agency claimed it had reviewed video of the Q&A sessions, but decided not to consider them. After GAO asked for the footage of the Q&A, the agency alleged that the video had been erased and that its previous claim to have reviewed the video had been a misstatement. Unimpressed with the agency’s conduct, GAO found that the solicitation required the agency to consider the Q&A session during evaluation. The agency’s failure to consider the video invalidated the award.
The Army issued solicitation for award of a task order to provide logistics support to the MD530F rotary wing aircraft. The solicitation provided that technical proposals would be comprised of PowerPoint slides and an oral presentation. The presentation included a one hour question and answer section. The solicitation further provided for “interchanges” between offerors and the agency. Responses to interchange notices would be considered in making the award decision.
Leidos Innovations Corporation and DynCorp International LLC submitted proposals. The Army selected Leidos’ higher-rated proposal for award. DynCorp protested the award to Leidos. In light of the protest, the Army took corrective action to reevaluated proposals.
But while the protest was pending, the Army had learned that DynCorp had sued the manufacturer of the MD530F aircraft, alleging fraud. Thus, as part of the corrective action, the Army conducted interchanges with DynCorp, expressing concerns about the company’s relationship with the manufacturer. DynCorp claimed that the litigation would not affect its performance. The Army was still unsure and thus amended to the solicitation to require offerors to submit verifiable assurance of manufacturer support.
DynCorp then filed a second protest, challenging the “verifiable support” amendment as unduly restrictive. The Army decided to take corrective action again to review the solicitation’s requirements.
While that corrective action was underway, the Army notified offerors that a new a contracting officer and evaluation team had been appointed. The new contracting withdrew the amendment that required offerors to provide verifiable support from the manufacturer. Thereafter, the new evaluation team reevaluated proposals and assigned new ratings to Leidos and DynCorp. This time around, Leidos’ ratings were not as good. The new contracting officer made award to DynCorp.
Leidos protested, alleging that the agency failed to consider information that Leidos provided during the Q&A portion of its oral presentation. The Army responded that it had reviewed video of the Leidos Q&A session, but had elected not to consider the Q&A sessions from any offerors. The Army also disclosed that it had conducted interchanges with DynCorp regarding the litigation with the aircraft manufacturer. Nevertheless, the agency had determined the new evaluation team should not be “tainted” by the information provided during those interchanges.
Not content with the Army’s response, GAO ordered the Army to produce the complete evaluation record, including the video of the Q&A sessions and DynCorp’s responses to the interchanges. The agency responded that the video of the Q&A sessions had been erased due to an “unintentional technical oversight.” Moreover, the Army now conceded, its claim that the evaluation team had reviewed the video was a misstatement. Rather, the contracting officer had simply reviewed a summary of the Q&A.
In light of this new information, Leidos filed a supplemental protest, asserting the Army erred in failing to consider DynCorp’s Q&A and DynCorp’s interchange responses. GAO held hearing to hear testimony from the contracting officer and the chair of the new evaluation team.
In its decision, GAO noted that it is not reasonable for an agency to exclude selected portions of a proposal or responses to agency questions when the solicitation provides that such information must be considered. It is especially unreasonable for an agency to conclude that a prior concern has been resolved on the basis of excluding known information from consideration.
Here, the solicitation clearly contemplated the agency’s consideration of information elicited during the Q&A sessions. It was also clear that the sessions had addressed highly relevant information, including DynCorp’s relationship with the manufacturer and Leidos’ unique resources. What’s more, the solicitation unambiguously stated that responses to interchanges would be considered in making the selection decision.
GAO found that the Army had failed to comply with solicitation requirements concerning the Q&As and interchanges. While the Army tried to argue that Leidos had not been prejudiced, GAO rejected its contentions. When an award is based on a flawed evaluation process, doubts concerning prejudice are resolved in favor of the protester.
Leidos is represented by Shelly L. Ewald and Emily C. Brown of Watt Tieder Hoffar & Fitzgerald, LLP. The intervenor, DynCorp, is represented by Scott F. Lane, Katherine S. Nucci, Edward W. Gray, Jr. and Jayna M. Rust of Thompson Coburn LLP. The agency is represented by Matthew R. Wilson, Andy K. Hughes, and Valerie H. Mullaley of the Army. GAO attorneys Glenn G. Wolcott and Christina Sklarew participated in the preparation of the decision.
