June Newsletter: Key Protest Decisions
Key Protest Decisions
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The United States Marine Corps issued a Task Order RFQ for deployable servers in support of the Program Management Office Marine Air-Ground Task Force Command, Control and Communications in July of 2016. The Task Order was to be awarded to the lowest-priced, technically acceptable offeror. Offerors responded to three evaluation criteria: price, technical, and past performance. The lowest-priced proposal was evaluated for technical and past performance, and if that proposal was found not acceptable for those factors, the agency proceeded to the next lowest-priced proposal. Interestingly, while offerors were to show their ability to provide deployable servers that met the required technical specifications as part of the technical evaluation, there was no standard or specified format that offerors were required to submit as part of their proposal showing this information.
A contract was awarded to DRS Networking and Imaging Systems LLC (DRS). NCS Technologies Inc. (NCS) filed a protest alleging that the deployable server proposed by DRS did not meet the technical specifications as it pertains to operating temperatures. In response to GAO’s consideration of the protest (and before a decision had been made), the agency issued a Corrective Action Letter which acknowledged the solicitation did not require vendors to “state their bases for asserting that an item met a stated performance requirement, and did not provide a uniform format for vendors to do so, thus ensuring all relevant information was submitted.” The agency provided DRS and NCS an updated compliance matrix and spreadsheet which would require both parties to clearly show that the required technical specifications, including operating temperatures, were met. Further, the agency clarified in Q&A that the offerors must show the technical specifications of the server model submitted in their original offer.
NCS protested the corrective action arguing that it is “limited in nature.” First, they claim that vendors should be allowed to revise aspects of their proposal, and should be allowed to propose a new server model at a new price. Second, they argue that DRS was given the opportunity to demonstrate the technical acceptability of their proposed servers because of discussions between the agency and NCS. The issuance of this corrective action should have resulted in discussions affording NCS the opportunity to revise all aspects of their proposal. GAO denied both protest allegations.
In their discussion, GAO stresses that any corrective action taken is up to the discretion of the Contracting Officer in order to “ensure fair and impartial competition.” They determined that the issuance of a spreadsheet to capture the technical specifications of the servers was sufficient to rectify the error. Further, additional discussions were not necessary to correct the issue. They found no error in limiting the amount of revisions asked by offerors as the requested information would allow for fair and impartial competition.
When filling a protest, or anticipating a corrective action, be advised that it is solely up to the discretion of the Contracting Officer as to how that action is taken. Do not expect that a corrective action will allow you to revise multiple components of your proposal. It can in fact be very limiting. And before you consider protesting a corrective action, ask yourself the following: (1) Did the corrective action rectify the original issue? Agencies are likely to have their legal team review corrective actions multiple times to ensure that it is not protestable. (2) Does the corrective action still allow for fair and impartial competition? Again, the agency is likely working with their legal team to ensure that it is. Be honest with the answers to these questions before you spend significant time and resources arguing against something that is up to individual discretion.
