Protest challenging the agency’s evaluation of proposals is denied, where the protester challenged only three of nearly 40 weaknesses, significant weaknesses, and deficiencies, leaving GAO to conclude that its proposal would not be considered acceptable even if its protest were successful. While the protester argued that its protest presented examples of the agency’s many alleged errors, GAO explained that a protester must present all grounds of protest when it becomes aware of them, and cannot hold some in reserve to present later. GAO also dismissed as untimely the protester’s allegations of an OCI on the part of the awardee, because the protester failed to raise these concerns when it knew that the awardee had won one of the IDIQs at issue.
Delta Risk LLC protested the National Institute of Standards and Technology’s award of a contract for cybersecurity research, development, and implementation services to G2 Inc., arguing that the agency improperly excluded its proposal from the competitive range, that G2 is affected by an incurable organizational conflict of interest, and that G2’s pricing is unbalanced and unreasonable. Delta also challenged the award of three task orders under the resulting IDIQ contract.
Delta Risk submitted a timely proposal for the procurement, but due to human error, the proposal was not evaluated with the other offers. The agency awarded an IDIQ contract to G2 Inc. and issued three task orders. After the agency became aware of the error, it evaluated Delta Risk’s proposal but concluded that it would not have been included in the competitive range for award due to multiple deficiencies. Delta Risk protested the evaluation of its proposal and the award of task orders to G2, arguing that it should have been able to compete for those orders.
As an initial matter, GAO granted the agency’s request to dismiss Delta Risk’s challenge to the task order awards as premature, as no decision had been reached on whether the protester was even eligible for award of the underlying IDIQ. GAO also noted the task order awards fell below the $10 million threshold establishing GAO’s jurisdiction.
On the remaining grounds, Delta Risk first argued that the agency committed numerous errors when evaluating its proposal and improperly assigned weaknesses, significant weakness, or deficiencies. However, GAO noted that the protester challenged only two of 20 deficiencies and only one of thirteen significant weaknesses, all of which were assigned under the technical approach factor. The protester argued that these were “just a few specific, representative samples” of the agency’s errors, but GAO explained that its regulations do not permit a protester to plead or preserve issues by means of examples, nor allow a protester to provide supporting facts and arguments at a later time during the protest process. Accordingly, GAO put Delta Risk on notice that any future attempt to challenge other weaknesses or deficiencies would be untimely.
On the merits, GAO concluded that Delta Risk could not demonstrate prejudice arising from these three alleged errors. Even if its challenge were successful, its proposal would still have 18 deficiencies, 12 significant weaknesses, and 19 weaknesses that it failed to challenge. GAO concluded that this range of weaknesses and deficiencies would have prevented Delta Risk’s proposal from being included in the competitive range.
Next, Delta Risk raised three procedural challenges to the agency’s competitive range determination. First, Delta Risk contends that the very establishment of the competitive range violated the terms of the RFP, which did not call for the establishment of a competitive range. However, GAO disagreed, noting that the RFP reserved the agency’s right to conduct discussions at its discretion. Once the agency decided to engage in discussions, it was required to establish a competitive range.
Next, Delta Risk challenged the adequacy of its debriefing, arguing that if the contracting officer had provided more and better information, the parameters of its protest grounds could have changed. GAO dismissed the challenge as a procedural matter outside the bounds of its bid protest jurisdiction.
Finally, Delta Risk asked GAO to disregard the CO’s statement, because it allegedly contradicted information provided to Delta Risk during its debriefing. Specifically, Delta Risk claimed that, during the debriefing, the CO was unable to articulate the criteria used to establish the competitive range (or alternatively stated that no criteria were used), and, then, during the pendency of the protest, submitted a statement detailing the quantifiable and measurable criteria used to establish the competitive range. Delta Risk argued the agency should not be allowed to change its story during proceedings. However, GAO found no basis to disregard the CO’s statement. While GAO will sometimes disregard post-hoc explanations of agency actions, in this case the CO’s statement was credible and consistent with the record and merely filled in previously unrecorded details.
Next, Delta Risk argued that G2 had an OCI that should have precluded it from award of the IDIQ and task orders. As an initial matter, GAO explained that Delta Risk was an interested party to challenge the award of the IDIQ, despite the rejection of its proposal, because G2’s proposal was the only offer deemed acceptable after discussions. Thus, if the protester’s complaints pertaining to G2’s proposal were to be sustained, the agency would have to rescind the award, potentially giving the protester another chance to complete.
GAO dismissed Delta Risk’s OCI allegation as untimely. GAO found that Delta Risk was aware of the award to G2 before the agency acknowledged that it had overlooked its proposal and before the evaluation of its offer. At that time, the agency proposed as corrective action that it would evaluate Delta Risk’s offer in accordance with the RFP, but it did not state that the corrective action would encompass any aspect of the award to G2. Rather, the agency advised that it could award an additional IDIQ to Delta Risk, while not disturbing the IDIQ and task order awards to G2. If Delta Risk had any concerns about G2’s alleged OCI, or the agency’s decision not to suspend work on G2’s task orders, it was required to raise them at that time.
Finally, Delta Risk alleged that G2 submitted unbalanced and unrealistic pricing. GAO dismissed these grounds, finding the protester offered no real evidence to support its allegation, other than its observation that for two task orders, G2’s price was lower than its own. Further, the RFP did not provide for a price realism evaluation, nor did the protester allege one was required.
Delta Risk LLC is represented by Douglas P. Hibshman and Nicholas T. Solosky of Fox Rothschild LLP. G2 Inc. is represented by Daniel E. Chudd, James A. Tucker, and Lauren J. Horneffer of Morrison & Foerster LLP. The government is represented by Jonathan Baker, Department of Commerce. GAO attorneys Elizabeth Witwer and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
