Protest challenging the agency’s failure to amend a solicitation to reflect changed requirements is dismissed as untimely, where the protester challenged the solicitation terms in an agency-level protest and was aware of the agency’s rejection of its request to amend the solicitation, at the latest, when the contract was awarded. While the protester argued that its communications with the agency were not an agency-level protest, GAO found the protester expressed its dissatisfaction with the agency’s solicitation and requested relief in the form of amended requirements.
Impact Resources Inc., d/b/a IR Technologies protested the Marine Corps’ award of an IT support services contract to Tactical Edge Inc., arguing that the agency failed to revise the RFP to reflect its changed requirement and unreasonably evaluated proposals.
First the protester primarily argued that the agency was required to amend the solicitation to reflect changes to the requirements. The protester argued that exchanges with agency personnel and agency documents indicate that the agency intends to retire the Storage Retrieval Automated Tracking Integrated System and Air Fortress during the first year of performance. According to Impact, the retirement of STRATIS and Air Fortress less than one year into a five-year program means the contract will be materially different from this solicitation’s terms. The protester alleged the agency made award with the apparent intention of issuing changes later, and argued instead the agency should have amended the solicitation.
The agency argued this protest ground was untimely. The agency argued that the protester effectively submitted an agency-level protest on November 28, 2017, expressing its belief that the agency’s requirements had changed and requesting that the agency amend the solicitation. According to the agency, at the very latest, the protester knew by the date of award, February 16, 2018, of the agency’s adverse decision, i.e., its decision not to amend the solicitation. As a result, the agency argued that the protester’s March 4 protest, which was filed more than 10 days after the protester knew or should have known of the basis of protest, is untimely.
In its comments, the protester argued that its November 28, 2017 letter was not an agency-level protest, because it did not express dissatisfaction with a prior agency action nor request a ruling by the agency. The protester further argued that the debriefing exception should apply because the agency withheld information critical to raising IR Tech’s protest ground, and it diligently pursued information about the potential changed requirements.
However, GAO agreed that the protester’s November 28 letter to the agency was an agency-level protest. In the letter, Impact expressed its dissatisfaction with the solicitation’s inclusion of the STRATIS and Air Fortress requirements in the solicitation, in light of its discovery that those requirements would be retired during the first year of the contract. The protester also specifically asked that the Marine Corps amend the solicitation to reflect its changed needs. While the letter did not explicitly state that it was a protest, GAO found it clearly conveyed the intent to protest by a specific expression of dissatisfaction with the agency’s action and a request for relief.
Accordingly, GAO found the protest untimely. On November 30, 2017, the agency responded to IR Tech’s November 28 letter, informing the protester that the agency would not be able to discuss the issues raised in its letter because it was related to a solicitation currently in the evaluation process. On February 14, 2018, the protester was notified that Tactical Edge was the apparent successful offeror and that an award would be forthcoming. GAO held that this letter placed the protester on notice that the agency would not undertake the requested corrective action, i.e., amend the solicitation. Accordingly, the protester’s March 4 protest, which was filed more than 10 days after the protester knew or should have known of the basis of protest, was untimely.
GAO also rejected the protester’s argument that the debriefing exception should apply. GAO explained that the basis for the protester’s complaint that the solicitation did not accurately reflect the agency’s changed requirements is the allegation of an impropriety in the solicitation, which is not covered by the debriefing exception.
Next, the protester challenged the evaluation of its own proposal under the innovation approach, management approach, and past performance factors, arguing that it should have been assigned higher ratings. In response, the agency provided a detailed agency report responding to Impact’s protest, in which it addressed each of the protester’s arguments.
GAO found that when Impact responded to the agency report, its comments failed to provide a response to the arguments advanced in the report. While the agency responded to the protester’s various challenges to the agency’s evaluation of its proposal and argued that the protester cannot demonstrate competitive prejudice, Impact did not provide a substantive or meaningful response. Accordingly, GAO found these arguments were abandoned.
Impact Resources Inc. is represented by David J. Seidman and Paul J. Seidman of Seidman & Associates, P.C. Tactical Edge Inc. is represented by Dennis Gardner of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. The government is represented by Lisa L. Baker and James S. Du Pre, United States Marine Corps. GAO attorneys Young H. Cho and Christina Sklarew participated in the preparation of the decision.
