An unsuccessful offeror challenged an award in a GAO protest. GAO held an outcome prediction conference and said it would sustain. The agency took corrective action. The initial awardee filed a COFC protest challenging the corrective action. The COFC sustained the protest. GAO's outcome prediction was based on a legal error. The resulting corrective was thus arbitrary. The court reinstated the intial award.
Kearney & Company, P.C. v. United Sates, COFC No. 24-162 and 34-201
- GAO Protest – The agency awarded a contract to Kearney. An unsuccessful offeror, Deloitte, filed a GAO protest. GAO held an outcome prediction conference. GAO said it was likely to sustain on labor category issue. The agency took corrective action.
- COFC Protest – Kearney filed a protest with the COFC objecting to the agency’s corrective action. Kearney argued GAO’s reasoning in the outcome predicition was wrong, and that the resulting corrective action was thus improper.
- Exact Match – No one had recorded the outcome prediction conference, so GAO’s precise reasoning was unclear. But the court thought GAO had recommended a sustain because the labor categories in Kearney’s FSS contract did not exactly match to a key statistician position in the solicitation. But the court reasoned that this mismatch should not have mattered. Everyone understands that an FSS contract will not have labor categories for every positiion in a solicitation. Thus, the general rule is that an exact match between a solicitation and a vendor’s labor categories is not required. Rather, vendors are allowed to “map” solicitation positions to their labor categories.
- GAO Wrongly Required an Exact Match – While the court did not know exactly what GAO thought, it appeared GAO had believed Kearney’s labor categories had to exactly match the solicitation positions. Indeed, the exact match requirement was the entire basis of the agency’s corrective action. But the court thought GAO’s exact match requirement was irrational. Nothing in solicitation required an exact match. GAO thus should have gone with the default rule allowing Kearney to map the key position to similar categories.
- Agency’s Corrective Action Was Irrational – The agency’s corrective action was based on GAO’s outcome prediction. But the outcome prediction was based on a misapprehension of the law. Thus, corrective action was irrational. The court sided with Kearney in sustaining the challenge to the corrective action.
- Reinstatement of Award – The court reinstated the award to Kearney. This put the parties back in the positions they occupied before GAO’s botched outcome prediction.
The protester is represented by Craig A. Holman, Kara I. Daniels, and Sarah A. Belmont of Arnold & Porter Kaye Scholer LLP. The intervenor, Deloitte, is represented by Arne Bluth Perry, Jonathan S. Aronic, Daniel J. Alvarado, and Lillia J. Damalouji of Sheppard Mullin Richeter & Hampton LLP. The government is represented by Vincent D. Phillips, Jr., Brian M. Boynton, Patricia M. McCarthy, and Corrinne A. Niosi of the Department of Justice.
--Case summary by Craig LaChance, Editor in Chief
COFC Kenney and Company