Imagine you’ve spent a ton of time, thinking about, making, or selecting the perfect gift for someone. But when you give the gift to that person, they’re indifferent, not knowing or caring how much work you put into it. You’re crestfallen as another piece of your soul hardens into a misanthropic shell. That’s how the protester in this case felt. The protester clearly spent a lot of time conceiving of a superior, elegant approach to recycling services. Alas, the agency just didn’t care that much. The protester took its grievances to court but found an icy, unsympathetic ear. The court basically said, “Sorry man. Recycling wasn’t that important to the overall contract. The agency wasn’t required to love your approach, and I can’t make them love it.”
The Ginn Group, Inc. v. United States, COFC No. 22-18
The Navy posted a solicitation for base operations support. The solicitation was set aside for SDVOSBs. Six offerors submitted proposals. The Navy selected Government Contract Resources (GCR) for award. Another offeror, The Ginn Group, filed a protest with the COFC.
Ginn contended that it had proposed special recycling services for white paper and aluminum cans, but GCR did not. Ginn believed its own approach should have received a strength, and GCR’s should have been downgraded.
The court did not agree. Recycling services was not a “distinct sub-annex” in the solicitation; it was simply a subtask under one of the sub-annexes. There was nothing in the solicitation that said additional recycling services would merit a strength or that the absence of such services would result in a downgrade. The court opined that second-guessing the agency’s decision on this would delve into the minutiae of the procurement, which the court does not do.
Still Giin, argued that the solicitation required offerors to use recycling to “the fullest extent possible.” Giin believed this language imposed a requirement to provide recycling services to the maximum. The court reasoned that it was difficult to imagine why the solicitation would qualify “to the fullest extent” with the word “possible” if the agency’s intent was to request the maximum amount of recycling. Instead, the court read this phrase as simply noting that minor and reasonable deviations from the requirement were anticipated.
Ginn complained that GCR’s staffing levels were too low in two areas. But the court noted that the Navy’s approach to evaluate staffing focused on critical and non-critical sub-annexes. The areas in which GCR had proposed thin staffing were non-critical. While GCR had nominally low staffing in those two areas, the Navy reasonably concluded that it did not impact the overall effort.
Ginn asserted that the SSA should have advised Ginn during discussions that the agency did not seek recycling services to the fullest extent possible. The court was not persuaded. Both Ginn and GCR had submitted acceptable proposals. When two offerors submit acceptable proposals that reflect each offeror’s different approach to the project, the agency does not need to homogenize the proposals through discussions. Ginn proposed a thorough approach to recycling; GCR’s approach was not as elaborate. But neither approach was unacceptable. There was no need for the agency to hold discussions on recycling.
Best Value Determination
Lastly, Ginn complained that the Navy failed to consider its recycling plan in the best value tradeoff. But the agency was not required to provide an in-depth critical analysis of an approach it merely found adequate. Disappointed offerors understandably lament the marginal differences that shape a best value determination, but the court cannot substitute its own judgment for that of an agency.
Ginn is represented by Nathanael D. Hartland and Courtney E. Walsh of Nelson Mullins Riley & Scarborough LLP. The intervenor, GCR, is represented by Meghan F. Leemon of PilieroMazza PLLC. The government is represented by Elizabeth M.D. Pullin, Douglas K. Mickle, Patricia M. McCarthy, and Brian M. Boynton of the Department of Justice as well as Robert Greg Palmer and Luke F Killam of the Navy.COFC - Ginn Group