GAO: Protester's Failure to Challenge Rating That Rendered its Proposal Ineligible Sinks Protest

June 26, 2020

A recent Government Accountability Office ("GAO") bid protest decision provides a cautionary reminder for protesters concerning interested party status. Where a protester fails to challenge an evaluation decision rendering the protester ineligible for award, GAO will likely conclude that the protester is not an interested party and will dismiss the protest.

 

In Babel Street, Inc., B-418730, June 16, 2020, the protester challenged the Air Force's evaluation and award of a contract under a request for proposals ("RFP") for the "publicly available information alerting Department of Defense enterprise license subscription (PADELS) service." The protester challenged three aspects of the evaluation: the agency's discussions, technical evaluation, and price evaluation. The protester, however, did not challenge its limited confidence past performance evaluation rating, which rendered its proposal ineligible for award. [1]

 

During the protest, the awardee intervened (the intervenor) and immediately sought dismissal. The intervenor argued that even if the protest was sustained, Babel would remain ineligible for award because it failed to challenge its limited confidence past performance rating. [2]  The protester argued that its protest should not be dismissed because it “identified specific factual errors" that if sustained, would allow it to revisit its past performance submission.  

 

In finding that Babel was not an interested party, GAO began by reiterating its longstanding rule:

 

  • Our Bid Protest Regulations define an interested party as an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract.  [CITE]  A protester is not an interested party where it could not be considered for an award if its protest were sustained. [CITE]

 

GAO determined that the protester's protest did not include a challenge to its limited confidence past performance rating. [3]  Because the protester failed to challenge its limited confidence rating, which rendered its proposal ineligible for award, GAO ultimately concluded that Babel was not an interested party and dismissed the protest. [4]

 

Takeaway

 

This bid protest illustrates one of the many intricacies in GAO bid protest litigation. Protesters not only must analyze in short order a lot of dense information, including, for example, the solicitation, proposal details, and debriefing materials (slides), but also must be aware of and adhere to the many rules governing GAO bid protests. As shown here, a slight hiccup could result in dismissal, despite the perceived strengths of any remaining protest arguments.

 

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[1]  The RFP provided that past performance would be evaluated for recency, relevance, and quality. Based on the evaluation, each offeror would receive one of the following five past performance ratings: substantial confidence, satisfactory confidence, neutral confidence, limited confidence, or no confidence. The RFP cautioned that “[o]nly Offerors with a past performance confidence rating of ‘Satisfactory’ or ‘Substantial’ will be eligible for award."  In other words, any other past performance rating would render an offeror's proposal ineligible for award.

 

[2]  Notably, the agency agreed with the intervenor’s dismissal analysis and joined the intervenor in the request for dismissal.

 

[3] GAO determined that the past performance factor is only discussed in the background section of Babel's protest and did not appear in any protest ground.  Moreover, GAO also found that the summary of protest grounds also didn't include a past performance challenge.

 

[4] See 4 C.F.R. § 21.0(a)(1); VetsTec, LLC, B-418164, Nov. 7, 2019, 2019 CPD ¶ 384 at 3 (finding that a protester is not an interested party where, even if the protest is sustained, the protester will be ineligible for award under the remaining terms of the solicitation); RELM Wireless Corp., B-405358, Oct. 7, 2011, 2011 CPD ¶ 211 at 4 (same).

 

. . .

 

#govconjudicata #bidprotest

 

 

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