Many government contracts practitioners complain that agencies have become too aggressive in withholding information from the agency record and litigating document requests in GAO protests. But in this protest, the agency’s overly-restrictive approach to disclosure backfired spectacularly. GAO basically said, “The agency has redacted so much from the record we can’t tell whether the award was reasonable, so we’re going to sustain.” Just because an agency can withhold information doesn’t mean it should.
Seaward Services, Inc., GAO B-420580, B-420580.2
Background
The Navy issued an RFP for maintenance and repair of the USNS Guam, a special high-speed transport vessel with an aluminum catamaran hull. The RFP specifically sought experience operating and maintaining aluminum-hulled vessels.
The Navy received proposals from Seaward Services, Inc. and TOTE Services, LLC. The Navy found Seaward’s and TOTE’s proposal comparatively equal under the non-price factors. TOTE received the contract due to its lower price. Seaward protested.
Legal Analysis
Technical Evaluation
Seaward argued that it had extensive experience maintaining aluminum-hulled ships while TOTE had virtually none. Thus, Seaward reasoned, the Navy erred in finding the two companies’ technical approaches comparatively equal.
GAO agreed. The record showed Seaward had significant experience maintaining aluminum-hulled ships. The record also showed that TOTE had almost no experience with aluminum-hulled vessels: no past performance examples, and no information to support any conclusions that the company had ever maintained an aluminum hull. Without even the most basic information demonstrating meaningful experience with an aluminum hull, GAO found the two strengths assessed to TOTE’s proposal inexplicable and sustained this portion of the protest.
Past Performance
Seaward contended the Navy erred in failing to find all of its past performance references relevant. But GAO reasoned that Seward was misreading the RFP. Seaward thought that any work performed on an aluminum hull should be relevant. The RFP. however, noted that aluminum hull work was important but other considerations—complexity and magnitude of the work—were also important. While Seaweard’s past contracts involved aluminum hull work they were smaller and involved different repair services. The Navy did not err in finding some of Seaward’s contracts less relevant.
Source Selection Decision
The Navy found Seaward’s and TOTE’s proposals comparatively equal. But the details underlying the comparative merits of the proposals were redacted. There were disagreements between the evaluators and the SSA but those were also redacted. In fact, TOTE’s proposal was so redacted, GAO could not even discern basic details of its offer. In the absence of an adequate record, GAO could not determine whether the agency’s conclusions were reasonable, and would not resolve doubt in the agency’s favor. GAO thus sustained Seaward’s challenged to the award decision.
Seaward is represented by Michael L. Waldman, Deneen J. Melander, and Leslie C. Esbrook of Kramer Levin Neftalis & Frankel, LLP d/b/a Kramer Levin Robbins Russel. The intervenor TOE Services, is represented by Howard W. Roth, Jedidiah K. Blake, and Nicole Wolf of Oles Morrrison Rinker & Baker, LLP. The agency is represented by Davis Young, Patrick Mayette, DJ Thornley, and James L. Johnson of the Navy. GAO attorneys Scott H. Riback and Tania Calhoun participated in the preparation of the decision.
