The protester contended the agency erred in making an award while an agency protest was pending. GAO disagreed. An agency protest must express dissatisfaction with agency action. The protester had sent some emails to the agency. But those emails had not expressed any real displeasure. The protester had simply stated it was “bringing [an issue] to the agency’s attention.” That language wasn’t strident enough to count as an agency protest.
Byrd Enterprises Unlimited, Inc., GAO B-421462
Background
The Air Force awarded a contract for ground maintenance services to AllServ, Inc. An unsuccessful vendor, Byrd Enterprises, protested.
Analysis
Agency Protest
Under FAR 33. 103, an agency cannot award a contract while an agency protest is pending. Byrd contended it filed an agency protest, and the Air Force awarded the contract before deciding Byrd’s protest.
GAO found Byrd had not filed an agency protest. To qualify as an agency protest, a protester must file a statement that expresses dissatisfaction with the agency’s decision and requests relief. Here, Byrd had sent several emails to the agency complaining about tasks omitted from the pricing sheet. But these emails did not express dissatisfaction. Instead, Byrd simply stated it was bringing the pricing matter to the agency’s attention. Merely presenting some questions to the agency does not constitute an agency protest.
Past Performance
Byrd also objected to the evaluation of AllServ’s past performance. The solicitation sought experience cutting grass between 7 and 14 inches. Byrd argued AllServ only had experience cutting grass up to 10 inches. Byrd said the Air Force should’ve found AllServ’s proposal unacceptable.
GAO didn’t see a problem. The solicitation merely presented a range of 7 to 14 inches. Nothing in the solicitation required vendors to have cut grass at every level in the range. AllServ had experience with 10 inch grass. That experience was within the 7 to 14 range.
Byrd is represented by Edward J. Tolchin of Offit Kurman. The intervenor, AllServ, is represented by Matthew R Schoonover. Matthew P. Moriarty, John. M. Mattox II, Ian P. Patterson, and Timothy Laughlin of Schoonover & Moriarty LLC. The agency is represented by Erika Whelan Retta of the Air Force. GAO attorneys Emily R. O’Hara and Peter H. Tran participated in the decision.
–Case summary by Craig LaChance, Senior Edito
