Protester Didn’t Object to Agency’s Interpretation of Solicitation During Discussions, Can’t Challenge It After Award; Northrop Grumman Systems Corporation–Mission System, GAO B-419557.2 et al.

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Protest alleging an OCI and challenging agency’s interpretation of the solicitation is denied. The protester contended the awardee had an unfair competitive advantage from hiring two former agency employees. GAO found no advantage because the employees never had access to competitively useful information. The protester argued the agency had misinterpreted the solicitation. But the protester learned of this interpretation during discussions and should have raised an objection before final proposal revision. The post-award challenge to the interpretation was untimely.

Background

The Navy issued a solicitation seeking an aircraft mounted jamming system prototype for low band radar. Northrop Grumman Systems Corporation–Mission Systems and L3 Technologies, Inc. Communications submitted proposals. Following discussions and proposal revisions, the Navy concluded the Northrop Grumman’s proposal was technically unacceptable. The Navy awarded the contract to L3. Northrop Grumman protested.

Legal Arguments

  • Rescheduled Debriefing — L3 argued that the protest was untimely because Northrop Grumman had not filed within ten days of the debriefing. GAO disagreed. Northrop Grumman had rescheduled the debriefing so its counsel could obtain access to classified information. When a protester negotiates a different debriefing date to accommodate individuals who need access to classified information, the debriefing is no longer a required debriefing. Also, requesting a delay to allow counsel access to classified information does not rise to the level of failing to diligently pursue information for a protest.
  • Unfair Competitive Advantage — Northrop Grumman contended L3 had an unfair competitive advantage because it hired two former Navy employees. GAO found no unfair advantage. These former employees had not had access to competitively used information. Moreover, the employees had left the Navy months if not years before the Navy developed its requirements.
  • Agency’s Interpretation of Solicitation — Northrop Grumman argued the Navy improperly rejected its technical approach during discussions based on an unreasonable interpretation of requirements. Whether a protester should challenge an agency’s interpretation of a solicitation during discussions depends on the facts. Here, Northrop Grumman had gone through multiple rounds of proposal revisions and discussions and ultimately abandoned the approach to which the Navy had objected. Having abandoned its apporach, Northrop Grumman should have challenged the Navy’s interpretation before its final proposal revision, not after award.

Northrop Grumman is represented by Jason A. Carey, and J. Hunter Bennett of Covington & Burling, LLP. The intervenor, L3, is represented by Mark D. Colley and Mike D. McGill of Arnold & Porter Kaye Scholer LLP. The agency is represented by Thy Nguyen of the Navy. GAO attorneys Sarah T. Zaffina and Edward Goldstein participated in the preparation of the decision.

GAO - Northrop Grumman Systems Corporation--denied