During an outcome prediction ADR, GAO advised it would likely sustain a protest due to lack of documentation in the evaluation record. The protester asked for reimbursement of costs. GAO denied the request. While GAO indicated it would likely sustain due to insufficient documentation, the protester had not raised the documentation issue in its protest. Rather, the protester had only raised an issue with FedRAMP authorization. The issue the protester had actually raised was not clearly meritorious. Thus, the protester wasn’t entitled to costs.
Martek Global Services, Inc.—Costs, GAO B-420865.3
Background
The Department of Veterans Affairs issued an RFQ for a project management system. The RFQ stated a proposed solution had be FedRAMP approved at a moderate impact level.
Martek Global Services submitted a quotation. The VA found Martek’s quotation unacceptable because it’s solution was not FedRAMP approved.
Martek filed a protest with GAO. Martek conceded its project management application was not FedRAMP approved. But Martek’s hosting environment was FedRAMP approved. Martek reasoned that because its hosting environment was approved, its solution as a whole met the RFQ’s requirements.
GAO asked the parties to provide supplemental briefing on whether Martek’s project management application had to be approved or whether the approval of the hosting environment was sufficient. To further develop the record, GAO held a hearing on the issue. During the hearing, the agency’s testimony revealed it made undocumented conclusions in evaluating Martek’s proposal.
Following the hearing, GAO held an outcome prediction ADR. GAO advised it would likely sustain the protest because the record did not adequately demonstrate how the agency reached its conclusions. The VA took corrective action to reevaluate Martek’s quotation.
Martek asked GAO to recommend reimbursement of protest costs.
Analysis
GAO will recommend reimbursement of protest costs when an agency unduly delays taking corrective action in the face of a clearly meritorious protest. A protest is clearly meritorious where the agency does not have defensible legal position.
Here, GAO found Martek had not raised a clearly meritorious protest issue. GAO stated it was likely to sustain based on the lack of documentation. But Martek had not raised the documentation issue in its protest. Rather, Martek had only raised the FedRAMP issue. GAO found the agency had a defensible legal position. Indeed, the issue was not a close call. GAO had asked for multiple rounds of briefing and a hearing to resolve the FedRAMP issue actually raised in the protest.
Martek is represented by David R. Johnson and Tyler E. Robinson of Vinson & Elkins LLP. The agency is represented by Frank V. DiNicola and John W. Tangalos of the Department of Veterans Affairs. GAO attorneys Raymond Richards and John Sorrenti participated in the decision.
–Case summary by Craig LaChance, Senior Editor
