GAO advised during ADR it was likely to sustain. The agency took corrective action. The protester requested costs. The agency argued costs weren’t justified because the protester’s argument was not meritorious. GAO said when it advises during ADR that it will sustain, it is indicating the protest is clearly meritorious. Regardless, GAO found the agency’s position—i.e., that the protester had not been prejudiced by the flawed evaluation—was not a defensible legal position.
Tactical Air Support, Inc., GAO B-421097.4
Background
The Air Force awarded a contract for air training services. An unsuccessful offeror, Tactical Air Support, protested, challenging the evaluation.
After development of the protest record, GAO held an outcome prediction ADR. GAO advised it would likely sustain. The Air Force took corrective action to reevaluate. Tactical requested reimbursement of protest costs.
Analysis
GAO will recommend reimbursement of protest costs when an agency delays taking corrective action the face of a clearly meritorious protest. Here, the Air Force delayed; it took corrective action after the agency report. The only issue was whether Tactical’s protest was clearly meritorious. A protest is clearly meritorious where an agency’s inquiry into the protest would have shown the lack of a defensible legal position.
The Air Force argued the protest wasn’t meritorious. The Air Force did not dispute that the evaluation was flawed. Rather, it maintained Tactical had not been prejudiced by the error.
GAO noted when it advises it’s likely to sustain a protest, that’s a good indication the protest is meritorious. Aside from this, GAO found Tactical had likely been prejudiced by the error. Tactical’s proposal was $68 million cheaper than the awardee’s. But for the error in evaluating the awardee’s experience, Tactical had a good shot at award. This was readily apparent from a reasonable review of the agency record.
Tactical is represented by Michael F. Mason, Stacy M. Hadeka, Thomas B. Hunt, and Christine Reynolds of Hogan Lovells US LLP. The agency is represented by Erika Whelan Retta, Aaron J. Weaver, and Christian H. Robertson II of the Air Force. GAO attorneys Mary G. Curcio and John Sorrenti participated in the decision.
--Case summary by Craig LaChance, Senior Editor