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Published on August 2, 2023 • Law

The Agency Apparently Damaged the Protester’s Video Submission. Why Couldn’t the Protester Submit a Replacement Video?

Fekete Tibor | Shutterstock

The agency couldn’t watch the protester’s video submission, so it found the protester unacceptable. The protester alleged the agency damaged the video. But GAO said even if the agency damaged the video, the protester was still out of luck.

DirectViz Solutions, LLC, GAO B-421598, B-421598.4

Damaged DVD – The solicitation required offerors to submit a 30-minute DVDs. When the agency tried to play the protester's the DVD, it stopped at the 12-minute mark. Due to the non-functioning DVD, the agency found the protester’s proposal unacceptable.
Alleged Mishandling of DVD – The protester swore it submitted a fully functional DVD. The protester reasoned the agency must have mishandled and damaged its DVD. Even if this was case, GAO reasoned, an agency’s loss of a proposal does not entitle an offeror to relief. This draconian result is justified because the only way to establish lost information is for the offeror to reconstruct the information. But allowing an offeror to reconstruct information after the closing date is not fair to other offerors.
Discussions – The protester argued the agency should’ve held discussions regarding the DVD. The protester reasoned it could have easily rectified the deficiency it received by submitting a new DVD. Indeed, the protester argued, the agency conducted discussions with other offerors to address deficiencies. But GAO found the agency wasn’t required to discuss the DVD with protester. While the agency communicated with offerors, the extent of deficiencies between those offerors and the protester was significant. Unlike the other offerors, the protester would have to submit a part of its proposal that was missing.

The protester is represented by Craig A. Holman, Amanda J. Sherwood, and Bryan R. Williamson of Arnold & Porter Kaye Scholer LLP. The awardee is represented by Adam Lasky, Amy C. Hoang, Stephanie B. Magnell, and Erica L. Bakies of Seyfath Shaw LLP. The agency is represented by Wade L. Brown and Todd J. Liebman of the Army. GAO attorneys Sarah T. Zaffina and Jennifer D. Westfall-McGrail participated in the decision.

--Case summary by Craig LaChance, Senior Editor

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