Agency’s request for reconsideration is denied. The agency argued that GAO’s decision was based on a factual error, but GAO found that the agency had misinterpreted the decision. The agency also alleged that reconsideration was necessary because the record had not included proper justification for the agency’s position. What’s more, the agency contended, GAO should have advised the agency that the record failed to adequately support the agency’s position. GAO rejected this argument reasoning that protests are an adversarial process. GAO is not obligated to advise parties about problems with their arguments.
The Army issued an RFQ seeking unexploded ordnance clearing services. The RFQ restricted the evaluation of experience and past performance. The RFQ limited the evaluation of experience and past performance to the firm that submitted the quotation, i.e., the company that would become the prime contractor. Additionally, the RFQ provided that the Army would only evaluate a firm’s past work as prime contractor, not work performed as a subcontractor.
AES UXO, LLC filed a protest alleging that the RFQ’s limitations on the experience and past performance were unduly restrictive of competition. The Army contended that the limitations were justified because it wanted to ensure that it only evaluated relevant experience of the firm actually submitting the quotation.
GAO sustained the protest. GAO reasoned that the RFQ precluded the evaluation of a prime contractor’s experience to the extent that experience had been obtained while performing as a subcontractor. GAO reasoned that the RFQ did not actually achieve the Army’s goal of ensuring that the prime contractor had relevant experience. Instead, it penalized firms that had obtained experience as a subcontractor. GAO recommended that the Army amend the solicitation.
The Army, however, requested reconsideration. The Army first alleged that GAO’s decision was based on an error of fact. The Army contended that by concluding that the RFQ did not achieve the agency’s objective—that is, of ensuring that the prime contractor (who would be in privity with the government) has relevant experience—GAO had essentially determined that the RFQ did not restrict the evaluation to only firms that would be in privity with the Army.
GAO found that the Army’s argument was based on a misunderstanding of the underlying decision. The decision acknowledged that the evaluation of experience and past performance would be limited to work performed by the company submitting the solicitation. But the decision also noted that the RFQ further limited the evaluation to work the company submitting the quotation had only performed as a prime contractor. The Army’s stated objective was to only evaluate the experience of the firms contractually obligated to meet the agency’s requirements. GAO found that this objective was met by the RFQ provision that limited the evaluation to work performed by the offering entity. But this objective was not met by excluding consideration of any relevant work the entity had performed as a subcontractor.
The Army also contended that reconsideration was necessary because the record did not include the agency’s justification for limiting the evaluation to only experience gained as a prime contractor. The Army contended that it had understood AES’s protest as not challenging this aspect of the RFQ. The Army further contended that GAO should have advised the agency of concerns it had with the Army’s understanding of the protester’s arguments.
GAO rejected this argument, reasoning that while AES’s protest was not a model of clarity, the company had clearly challenged the restriction on experience gained as a subcontractor. Additionally, GAO reasoned that it had no obligation to advise the Army about concerns it had the with agency’s position. The bid protest process is adversarial. Parties are responsible for arguing issues and supporting their own positions. It is not GAO’s responsibility to advise an agency that it has failed to adequately support its position.
The agency is represented by Andrew J. Smith, Lieutenant Colonel Jess R. Rankin, Major Susan Kim, and Captain Ethan Chae of the Army. The protester is represented by Terrence Young of AES UXO, LLC. GAO attorneys Heather Weiner and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
