The U.S and the Danish governments negotiated an agreement under which only Danish or Greenlandic companies would be eligible to compete for contracts on a U.S air base in Greenland. The protester argued that in negotiating this agreement, the Danish and Greenlandic government had participated in establishing evaluation criteria for work at the air base. The protester contended this created a biased ground rules OCI, and thus certain Danish/Greenlandic contractors should be excluded. But GAO noted that the protester’s entire argument was premised on a press release from the Premier of Greenland. The release did not suggest that the Danish and Greenlandic governments had actually participated in creating the evaluation criteria.
Inuksuk A-S, GAO B-420527.2
Background
The U.S. and the Kingdom of Denmark entered a Defense of Greenland Agreement in 1951, which created Thule Air Base in Greenland. In 1991, the U.S. and Denmark entered a memorandum of understanding, which provided that the U.S. had to acquire goods and services for the Thule Air Base from Danish/Greenlandic sources.
In 2014, the Air Force awarded a contract for maintenance at Thule Air Base. The awardee was registered in Denmark but was a wholly owned subsidiary of a U.S. company. The Kingdom of Denmark believed this was a loophole in a the 1991 agreement. As a result, the U.S. and Denmark executed a diplomatic note that redefined a Danish/Greenlandic company. As of 2020, to qualify as Danish/Greenlandic, more than 50% of a company’s equity had to be owned by Danish or Greenlandic individuals.
In 2021, the Air Force issued a new RFP for maintenance at Thule Air Base. Inuksuk filed a protest with GAO, challenging the terms of the solicitation.
Legal Analysis
Conflict of Interest
Inuksuk argued that in 2014, when the various governments negotiated a new definition of a Danish company, the government of Denmark and Greenland participated in establishing evaluation criteria for the work at Thule Air Base. Inuksuk reasoned this created a biased ground rule conflict of interest for multiple contractors owned by the Danish and Greenlandic governments. Inuksuk believed that all of these contractors should be excluded from the procurement.
But GAO noted that Inuksuk’s entire argument was based on a press statement form the Premier of Greenland in 2014, who said that the country was happy with the new terms of the international agreement and the “new tender criteria, and contract terms, that we have negotiated in place. GAO reasoned that this statement merely expressed pleasure with the new international agreement. Nothing in the statement suggested that the Greenlandic and Danish governments had a role in establishing criteria for the maintenance contract.
Vehicle Replacement
Inuksuk contended that the solicitation did not provide adequate information on vehicle and equipment replacement. Inunsuk maintained that without additional information, offerors would have to guess which vehicles and equipment would require replacement.
GAO didn’t see a problem with the vehicle or equipment descriptions. The solicitation provided the items’ names, description, stock number, and model numbers. What’s more, offerors had been allowed a ten-day site visit in which they could have inspected vehicles and equipment. GAO believed that side visit in combination with the information given in the proposal provided enough information to offerors
Past Performance
The solicitation did not include past performance as an evaluation factor. Inuksuk argued that in light of the harsh conditions in Greenland, it was unreasonable for the agency to omit past performance.
Agencies are required to evaluate past performance unless the contracting officer documents a reason that past performance is not an evaluation factor. Here, GAO determined, the contracting officer had reasonably decided not to evaluate past performance because very few of the Danshich/Greenlandic companies eligible for the contract would have the required past performance.
Inuksuk is represented by Kevin Mullen, Krista A. Nunez, and Victoria D. Angle of Morrison & Foerster LLP. Intervenor Greenland Contractors is represented by Rina M. Gashaw, William B. O’Reilly, James G. Peyster, and Anuj Vohra of Crowell & Moring LLP. Intervenoe 76 North Group A/S is represented by Gary J. Campbell and Miles McCann of Womble Bond Dickinson (US) LLP. The agency is represented by Erika Whelan Retta, Colonel Frank Yoon, Michael J. Farr, and Katerine A. Illingworth of the Air Force. GAO attorneys Mary G. Curcio and John Sorrenti participated in the preparation of the decision.
