Barring highly unusual circumstances, once protesters file a protest, they usually fight tooth and nail to protect their interests and prevent the award from going forward. The recent decision by the Government Accountability Office in Yang Enterprises, Inc., B-415923 (March 12, 2018) reminds us what can happen when the protester does not zealously advocate in favor of its protest grounds.
The protest involved a request for proposals (RFP) issued by the Department of the Air Force for launch operations and infrastructure support services at Cape Canaveral, Florida.
The RFP contemplated the award of a hybrid contract with both fixed-price and cost-reimbursement contract line item numbers (CLINs). It advised offerors that the agency would use a cost realism evaluation to evaluate the cost-reimbursement CLINS. After it learned that the Air Force had awarded the contract to ASRC Communications, Ltd., Yang Enterprises, Inc. protested, arguing that the agency failed to perform an adequate cost realism evaluation of the ASRC proposal. In response, the agency provided the GAO and the other parties a detailed agency report responding to Yang’s protest. More particularly, the Air Force claimed that (i) the protest was procedurally inadequate because Yang is not an interested party and the protest is factually and legally insufficient; (ii) Yang’s protest should be denied because the agency performed an adequate cost realism evaluation. In support of the latter assertion, the agency included documentation of its cost realism evaluation of the ASRC proposal.
Yang’s initial comments in response to the agency report and cost realism documentation consisted of a single paragraph:
Protestor has carefully reviewed the Agency Report. It is Protestor’s position that the Report, and supporting documentation, do not contain sufficient analysis of the relation of the technical portions of ASRC’s proposal to the cost analysis to justify the conclusion that the cost realism analysis performed by the Air Force was thorough, complete and accurate. For that reason, Protestor continues to maintain the position set forth in its protest to your Office and requests the relief set forth therein.
Upon receiving those comments, the Air Force asked the GAO to dismiss Yang’s protest as abandoned based on the brevity of its comments. Tang then provided a short additional statement:
Protestor has not abandoned its protest position. We respectfully disagree with the position of [agency counsel]. We understand the holding of the decision he cites but in the instant case it is Protestor’s position that the arguments in the Protest are still valid and are not satisfied by the information provided in the Agency Report.
The GAO had no trouble dismissing the protest as abandoned. It reiterated that protesters are required to respond to the agency report with a substantive response to the arguments advanced by the agency. Merely referencing earlier arguments advanced in the initial protest without providing a substantive response to the agency’s position is not sufficient, and will lead to the GAO dismissing the subject allegations as abandoned. Similarly, a protester’s bald assertion, without elaboration, that its initial arguments “are maintained” also will result in the dismissal of the arguments as abandoned.
Here, the GAO found that Yang failed to provide a substantive or meaningful response to the agency’s arguments on the merits regarding the propriety of its cost realism evaluation. Instead, Yang essentially “doubled down” on its initial argument that the agency report does not contain sufficient analysis of the relation between the awardee’s technical proposal and the agency’s cost evaluation without even attempting to explain the basis for its conclusion or identifying what documentation in the record it believes is inadequate. Similarly, Yang failed to rebut--or to even respond to--the agency’s procedural arguments. That failure led the GAO to question both Yang’s interested party status, as well as the legal sufficiency of its original filing. Under the circumstances, the GAO concluded that Yang had abandoned its protest and denied the protest without considering the merits of Yang’s arguments.
The lesson here is fairly simple: if you file a protest, stay engaged and advocate vigorously in support of your position. If you don’t, you run the risk of having any neglected protest grounds thrown out as abandoned—and not ever considered by the GAO.
Eric Whytsell is responsible for the contents of this Article.
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