Protest alleging that awardee failed to comply with a solicitation requirement is sustained. The solicitation prescribed certain threshold requirements. The protester alleged the awardee had not satisfied one of these requirements. The agency thought this was no big deal because the awardee had proposed a credible path to meeting the requirement. GAO did not find the agency’s argument compelling. An offeror must demonstrate compliance with a threshold requirement in its proposal. The agency could not just let the requirement slide based on the awardee’s plan to comply after award.
The Navy posted an RFP for an aircraft-mounted jamming system. Two offerors, Northrop Grumman and L3 Technologies, Inc. Communications Systems submitted proposals. The Navy awarded the contract to L3. Northrop Grumman protested.
Northrop Grumman contended that the Navy should have found L3’s proposal unacceptable. The solicitation required the evaluation of jamming performance. For purposes of evaluating jamming performance, the solicitation instructed offerors to meet certain threshold requirements, i.e., a minimally acceptable performance levels. One of these threshold requirements was for a pod that could radiate a specific signal strength over certain frequencies. Northrop Grumman argued that L3’s pod did not meet the requirements for each frequency.
The Navy conceded that it had recognized a risk in L3’s proposal, but it still found the proposal acceptable because L3 had “proposed a credible path forward” to meet the threshold requirement.
GAO rejected the Navy’s argument. The solicitation states offerors had to describe how their approach “meets” the threshold requirements. The use of the present tense “meets” indicated that offerors were required to demonstrate this compliance in their proposals, nat after award. The Navy’s argument reflected a misunderstanding of the problem with the evaluation. The error was not the degree to which L3 could ultimately meet the threshold requirement, but rather the fact that L3 failed to comply with the requirement.
Although the Northrop Grumman’s proposal had been found technically unacceptable, GAO found that the company was still prejudiced by the agency’s error. If the Navy had properly identified the deficiency in L3’s proposal, it would have conducted discussions, which would have given Northrop Grumman a chance to address the deficiencies in its proposal.
GAO recommended the Navy reopen discussions and evaluate revised proposals.
Northrop Grumman is represented by Jason A. Carey, Kayleigh M. Scalzo, J. Hunter Bennett, Andrew Guy, Peter B. Terenzio II, and Paul Rowley of Covington & Burling, LLP. The intervenor, L3, is represented by Craig A. Holman, Mark D. Colley, Kara L. Daniels, Michael McGill, Thomas A. Petit, and Trevor Schmitt of Arnold & Porter Kaye Scholer LLP. The agency is represented by Theresa M. Francis Patrick R. Vanderpool, and Talor M. Rudolph of the Navy. GAO attorneys Sarah T. Zaffina and Edward Goldstein participated in the preparation of the decision.
