GAO Finds Protest Is Effectively Assemblage of Forsaken and Belated Arguments; Avionic Instruments LLC, GAO B-418604.3


Protest challenging evaluation of proposals is denied. The protester alleged the agency misevaluated its own and the awardee’s proposals. The protester had raised these arguments in its initial protest, and the agency responded to them in the agency report. But GAO found that the protester had failed to address the agency’s response in its comments. Accordingly, the arguments had been abandoned. The protester asserted additional protest arguments in its comments. GAO found that these arguments had not been raised within 10 days of when the protester learned of them; they were untimely.

The Navy posted an RFP seeking a contractor to replace the analog inverters on helicopters to digital inverters. The inverters convert a helicopter’s direct current (DC) into alternating current (AC) making it usable for other electronic needs.

The Navy received proposals from Avionic Instruments, LLC and Physical Optics Corporation (POC). The Navy awarded the contract to POC. Avionics protested the award, and GAO affirmed the protest. Following the protest, the Navy reevaluated proposals. The Navy again awarded the contract to POC. The Navy reasoned that POC’s and Avionic’s proposals were technically similar, but POC had a lower price. Avionic filed a second protest.

Avionic alleged that Navy erred in failing to assign a risk reducer to its proposal for the reliability of its proposed inverter. But GAO found that this argument was abandoned. Protesters are required to provide substantive responses to an agency report. When a protester merely references arguments in the first protest without providing a substantive response to the agency’s position, GAO will consider the arguments abandoned.

Here, the Navy provided a substantive defense to its decision to not assign risk reducer. The Navy did not believe that the reliability of Avionic’s inverter on a plane necessarily demonstrated it reliability on a helicopter. Moreover, the Navy was not persuaded by the data Avionic provided for its inverter. In its comments on the agency report, Avionic did not address the Navy’s contentions. GAO considered the argument abandoned.

Avionic also argued that in evaluating POC’s technical risk, the Navy had failed to consider that POC and its subcontractor lacked experience. GAO, however, again found that Avionic had abandoned this argument. The Navy had defended its evaluation of POC in the agency report. Avionic’s comments failed to substantively respond to the agency’s defense of the evaluation.

Avionic contended that the best value tradeoff was flawed because the Navy failed to meaningfully consider material proposal differences. GAO rejected this argument, noting that the SSEB chair considered the types and qualities of risk reducers assigned to both offerors. Far from being a rote counting of risk reducers, GAO found that the SSEB conducted a nuanced comparison. Moreover, GAO determined that the source selection authority gave thoughtful consideration to the entirety of proposals.

Avionic asserted a number of additional allegation in its comments on the agency report. These arguments were based on documents disclosed as part of the agency report. GAO found that these arguments involved different factual bases than the arguments raised in the initial protester. Accordingly, they should have independently satisfied the timeliness requirements for a protest—i.e., filed within 10 days of when they were known. Avionic, however, had not raised these arguments in supplemental protest, and it filed it comments more than 10 days after receiving the agency record. Accordingly, GAO found that the arguments were untimely.

Avionic is represented by Jonathan D. Shaffer and Michael T. Gwinn of Smith Pachter McWhorter PLC. The intervenor, Physical Optics, is represented by John R. Prairie, Cara L. Lasley, and Nicole E. Giles of Wiley Rein LLP. The agency is represented by Ann M. Stewart, Eric M. Carlson and Cody Benway of the Navy. GAO attorneys Kenneth Kilgour and Jennifer Westfall-McGrail participated in the preparation of the decision.

GAO - Avionic Instruments