The protester challenged three awards. GAO found the protester was only an interested party for one award. For the other two, the protester was not next in line for award, and it had not challenged the intervening offerors. The protester argued that due to the GAO protective order, it had not known the identities of these intervening offerors and thus was unable to challenge the evaluation of their proposals. GAO found this was no excuse. The protester had outside counsel who was admitted to the protective and could’ve have easily determined the identity of the other offerors.
Merrill Company d/b/a Mission Support, GAO B-421082 et al.
Background
The Defense Logistics Agency (DLA) issued three solicitations seeking A-10 aircraft parts. The solicitations provided that awards would be made to the lowest-priced proposals that received acceptable technical and past performance ratings. Four offerors submitted proposals. DLA awarded all three contracts to R&M Government Services. An unsuccessful offeror, Mission Support, filed a protest challenging the awards.
Analysis
Interested Party
GAO found that Mission Support was not an interested party to protest two of the awards because in those two competitions, other offerors had submitted technically acceptable proposals with lower prices, and Mission Support had not challenged the evaluations of those other offerors. Thus, for those two contracts, Mission Support was not next in line for award.
Mission Support argued that due to the GAO protective order, it had not received a copy of the agency report, so it did not know the identity of the intervening offerors, and thus was not in position to challenge the evaluation of those offerors. But GAO found this was no excuse. Mission Support’s outside counsel had received a copy of the agency report. Outside counsel for a protester stands in the shoes of the protester. Because outside counsel had access to the identity of the other offerors, Mission Support was not excused from the interested party provisions of GAO’s regulations. Mission Support could only object to the single award where it was next in line.
Technical Acceptability
Mission Support argued DLA erred in finding that R&M’s proposal was acceptable. GAO, however, noted that the sole criterion for acceptability was that an offeror be listed as an approved source by the Air Force. R&M was listed as an approved source. If Mission Support believed other criteria should have been used, its argument was an untimely challenge to the terms of the solicitation.
Limitation on Subcontracting
Mission Support argued that R&M would rely heavily on the resources of its subcontractor and that this would violate the solicitation’s limitation on subcontracting clause. But an agency’s judgment on whether a contractor will comply with a limitation on subcontracting clause is a matter of responsibility. GAO will not question the agency’s judgment unless it appears the awardee has taken exception to the limitation clause. Here, Mission Support had not cited any portion of the R&M’s proposal that took exception to the clause.
Price Realism
Mission Support alleged DLA failed to evaluate realism of R&M’s proposed price. GAO found that although this was a fixed-price contract, the solicitation had required DLA to assess price realism. The record showed, however, that DLA had assessed realism. Indeed, DLA had raised concerns about R&M’s price during discussions. The agency had then reasonably found that DLA had addressed those concerns.
Responsibility
Mission Support contended DLA shouldn’t have found R&M responsible because the company lacked the financial capability to perform the work. In particular, Mission Support identified a Dun & Bradstreet report that contained negative information about R&M’s finances.
GAO found that the contracting officer had considered R&M’s financial capabilities from a number of a relevant sources. Mission Support had not shown that the agency should’ve considered the Dun & Bradstreet report.
Mission Support is represented by Alan Grayson. The intervenor, R&M, is represented by Matthew T. Schoonover, Matthew P. Moriarty, John M. Mattox II, Ian P. Patterson, and Timothy Laughlin of Schoonover & Moriarty LLC. The agency is represented by Michael H. O’Farrell, Jr. of the Department of Defense. GAO attorneys Jonathan L. Kang and John Sorrenti participated in the preparation of the decision.
–Case summary by Craig LaChance, Senior Editor
