Three strikes and these protests were out

Note to the wise and those who want to be: Read this decision in its full glory at the link. The rendition below is incomplete, perhaps inaccurate, and simply intended as an exposure to procurement problems for students of procurement; not to decide any particular controversy.

Matter of: AeroSage, LLC; SageCare, Inc., B-415267.13; B-415267.14, March 19, 2018

AeroSage LLC, of Tampa, Florida, and SageCare, Inc., also of Tampa, Florida, each a service-disabled veteran-owned small business (SDVOSB), protest various aspects of the structure and award of a request for proposals. Prior to filing the instant protests, the protesters each had a pending protest of the same procurement at issue here. In those protests, the protesters presented their grounds as “a protest of the Agency’s improprieties in negotiations and evaluation of protestor’s offers, improper contract terms, quantities, and technical requirements in violation of interagency fuel regulations, and procurement integrity violation prejudicing protestor and limiting ability to obtain certificates of analysis (COA) or best price for the government. The protesters filed the joint protests at issue here challenging DLA’s decision to continue with contract performance. The protesters also contested various aspects of the structure of the RFP and the agency’s evaluations and awards.

After reviewing the joint protests, the GAO attorney assigned to the protest instructed the protesters to indicate whether the February 9 joint protest raised new protests issues or whether the protest grounds were duplicative of those raised in the pending protests. The protesters summarized the new protest issues (i.e., those not previously raised in the pending protests) as allegations of: (1) improper pre-award and post-award notice; (2) violations of Defense Logistics Acquisition Directive (DLAD) 33.104; (3) improprieties with the override of the stay imposed by CICA; (4) problems with award and evaluation, including award made after override of the CICA stay and awards made based on allegedly flawed underlying specifications; (5) general errors in the solicitation (such as unspecified but “erroneous requirements which have just come to light”); (6) flaws in certain specifications in the solicitation, such a failure to follow the “Veterans Benefit Act”; (7) problems with the solicitation’s certification requirement; (8) failing to provide the protester with copies of certain documents; and (9) a faulty solicitation structure such that awards might decrease SDVOSB participation. In addition, the protesters provided the following statement regarding their protest grounds: “We do not know what awards were made, when, and why awards were made. Any awards that we might know about were improper and/or have been changed without notice.”

Although the protesters raise a multitude of protest grounds, each ground is dismissable under one or more of the three dismissal bases described below.

Untimely Protest Grounds

The protesters challenge various aspects of the solicitation and award, for example, the fact that awards were allegedly made on the basis of “erroneous [solicitation] requirements which have just come to light.” These challenges are untimely. These protests were filed several months after the proposal due date. Thus, to the extent that the protest grounds here, such as issues (4) and (5) above, challenge any aspect of the solicitation, they are untimely and are dismissed. (“Protests based upon alleged improprieties in a solicitation . . . shall be filed prior to bid opening or the time set for receipt of initial proposals.”). Similarly, protest grounds challenging any specific award are also untimely. In this regard, our Bid Protest Regulations provide that all protests other than challenges to a solicitation must be filed within 10 days after the basis of protest is known or should have been known.

Competition in Contracting Act (CICA)

Next, the protesters allege that the agency improperly failed to stay performance of the contract notwithstanding the protest, as required by CICA. In this regard, the protesters argue that “[t]here is no reasonable justification that these awards are urgent or compelling given they are currently available for performance by other proper acquisition vehicles.” The agency contends that “[t]his issue falls outside of GAO’s bid protest function and should be dismissed.” The protesters chose not to rebut this argument.

Under CICA, a contracting agency is required to suspend contract performance if it receives notice of a protest from our Office within 10 calendar days of the date of contract award. However, an agency’s failure to adhere to the stay requirement is not a valid basis of protest. (“GAO does not administer the requirements to stay award or suspend contract performance under CICA”.) To the extent that the protests challenge the agency’s decision to continue with performance, whether under CICA or any other statute, regulation, or guidance, those allegations are dismissed.

[NOTE TO THOSE OPERATING UNDER ABA MPC automatic stay provisions: The federal system operates differently. Do not try this at home.]

Failure to State a Valid Basis of Protest

The protesters also challenge the agency’s decision to make various awards. However, in summarizing their protest grounds, the protesters also advised our Office as follows: “We do not know what awards were made, when, and why awards were made. Any awards that we might know about were improper and/or have been changed without notice.” Our Bid Protest Regulations state that protesters must “[s]et forth a detailed statement of the legal and factual grounds of protest” and require a protester to “clearly state legally sufficient grounds of protest.” 4 C.F.R §§ 21.1(c)(4), (f). The regulations also provide for dismissal of protests that fail to satisfy either of these requirements. The statement above denies knowledge of basic, important facts relevant to the protest grounds and calls into question the existence of a factual predicate for any award-related protest ground. The statement shows that the protesters lack sufficient factual basis for their protests and the protest grounds contesting the basis of award are thus dismissed.

Similarly, the protesters raised several arguments related to lack of notice, such as “[a]wards made with [i]mproper, incorrect, and not provided pre-award and post-award notice and awards improperly changed without notice.” In all instances alleging a problem with notice, the protesters fail to state a sufficient legal basis for these protest grounds or a complete factual predicate. Thus, the protest grounds related to notice are similarly dismissed

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