The U.S. Government Accountability Office (“GAO”) recently dismissed a protest challenging the Department of Homeland Security’s evaluation of the Protester’s proposal and subsequent discussions with the Protester. The GAO found that the Protester’s arguments did not demonstrate that it was next in line for award, rendering the Protester a disinterested party with no standing to protest. This decision serves as a reminder that when challenging the government’s award decision, a contractor must be an interested party or the GAO will dismiss the protest, often times before even considering the merits. This decision also highlights how important it is for the Protestor to set forth timely arguments that demonstrate its interested party status in its initial protest filing.
The Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE) issued a solicitation for “comprehensive detention services at the Port Isabel Detention Center (PIDC), in Los Fresnos, Texas. Importantly, the solicitation provided that offerors’ proposals would be evaluated based on price and non-price factors, with non-price factors being significantly more important than price. ICE received proposals from three offerors in response to the Solicitation: Ahtna (“Ahtna” or the “Protester”); AIP (“AIP” or the “Awardee”), and a third company (“Offeror 3”). The contracting officer, who also served as the source selection authority, assessed each proposal a “High Confidence” rating under the non-price evaluation factors. With respect to price, the Awardee proposed the lowest price, Offeror 3 proposed the second lowest price, and the Protester proposed the highest price.
ICE ultimately awarded the contract to AIP, and Ahtna timely protested. In the Protest, Ahtna alleged that:
- The Awardee’s proposal should have been rated unacceptable under each evaluation factor, and therefore ineligible for award;
- ICE engaged in misleading and disparate discussions with the Protester regarding price;
- ICE relaxed solicitation requirements for the Awardee, thereby treating the Protester and Awardee disparately; and
- ICE’s award decision was unreasonable because it was based on a flawed evaluation, it failed to document why the Protester’s proposal did not warrant a price premium, and it failed to document that the contracting officer and evaluators look behind the evaluation ratings.
In its Agency Report, ICE addressed the Protester’s arguments on the merits and requested the GAO dismiss the protest. Specifically, ICE claimed that the Protester lacked the status of an interested party because the contracting officer had assessed Offeror 3 a rating superior to the Protester’s under price and non-price factors, thereby making Offeror 3 the next in line for award. The Protester filed comments and supplemental protest grounds in response to the Agency Report, and the GAO required each party address specific questions it posed regarding the Protester’s interested party status.
The GAO determined that the contemporaneous record did not demonstrate that the Protester’s proposal would be in line for award, even if the watchdog were to find the Protester’s challenges to the evaluation of AIP’s proposal meritorious. Accordingly, the GAO concluded that the Protestor was not an interested party to challenge the award and dismissed the protest.
First, in reaching this conclusion, the GAO focused on ICE’s ratings of all offerors under the non-price factors, and concluded that while all offerors were assessed a “High Confidence” rating for each non-price evaluation factor, ICE expressly identified advantages with respect to the Awardee’s and Offeror 3’s proposal in the Source Selection Decision Document (SSDD). The GAO noted though that that ICE did not expressly identify any advantages in the Protester’s proposal under any non-price factor. Additionally, the GAO noted that the advantages identified by ICE were for the most heavily weighted non-price factor, “technical capability/management approach.” Therefore, despite the Protester’s argument that ICE’s explanation of its evaluation record amounted to post-hoc justifications, GAO found that the contemporaneous record clearly indicated that ICE compared the offerors’ proposals and found both the Awardee’s and Offeror 3’s proposals to be superior to the Protester’s under the non-price factors. The GAO also considered the Protester’s arguments related to ICE’s evaluation of the Protester’s proposal under the price factor. The Protester complained that the Awardee’s and Offeror 3’s price proposals both reflected a lack of understanding of or a deviation from the solicitation requirements. The GAO dismissed this basis of protest and determined that the Protesters argument focused on what it alleged were flaws in ICE’s evaluation of the Awardee’s price proposal and not on any alleged flaws in its evaluation of Offeror 3’s proposal. Accordingly, the GAO held that the Protestor failed to demonstrate that ICE unreasonably evaluated Offeror 3’s proposal in any way and fail to clearly state legally sufficient grounds of protest.
Additionally, the Protester argued that during discussions, ICE misled the Protester to increasing its price. The Protester specifically complained that ICE’s discussion questions were misleading and unequal, and that ICE should not have led the Protester to increase its price through discussions. The GAO noted, however, that the Protester, did not argue in its protest or supplemental protest that it would have lowered its price during discussions below its initially proposed price of $222,859,412, which is higher than that of Offeror 3, even if ICE had not misled it into raising its price. Because the Protestor raised this argument only in response to questions from the GAO attorney regarding its interested party status, the GAO determined that this argument was ultimately a “piecemeal presentation or development of protest issues” and noted that to the extent the Protester was seeking to raise an alternative argument as to why it believed ICE’s discussions were improperly conducted, the argument was untimely because it was not raised within 10 days of when the protester knew or should have known of its basis.”
Finally, the GAO addressed a protest allegation related to the debriefing that ICE provided which stated that the Agency did not develop a ranking of proposals during the source selection. The Protester asserted that this statement proved that ICE did not rank proposals for purposes of award, and accordingly that there can be no valid basis to conclude that Offeror 3’s proposal should be considered in line for award ahead of its own proposal. The GAO rejected this argument because it concluded that the contemporaneous record demonstrated that the contracting officer determined that Offeror 3’s technical proposal was superior to the Protestor’s. And, the GAO went on, because the Protester’s arguments failed to challenge the fact that Offeror 3’s proposed price was lower than the Protestor’s initial price, prior to discussions, this protest ground was dismissed because Protestor was not an interested party with standing to raise this issue with the GAO.
- Standing takes precedent. To challenge an agency’s award decision, a protester must be an interested party. “Where there is an intervening offeror who would be in line for the award even if the protester’s challenges were sustained, the intervening offeror has a greater interest in the procurement than the protester, and [the GAO will] generally consider the protester’s interest to be too remote to qualify it as an interested party.
- Present it all. The Bid Protest Regulations require protesters to “[s]et forth all information establishing that the protester is an interested party for the purpose of filing the protest.” 4 C.F.R. § 21.1(c)(5). This means that protestors should not present their bid protest arguments piecemeal. A protestor’s initial protest filing should set forth as many facts as possible that clearly demonstrate its interested party status.
- Present it in a timely manner. Relatedly, when a protestor fails to present all the facts that demonstrate its interested party status, and instead raises these facts later in the course of the pending protest, the GAO may deem the related protest grounds untimely. If this happens, it is likely that these additional protests grounds will not be considered by the GAO.