How a lie by omission won’t win you a protest

How a lie by omission won’t win you a protest

Although a protest to the Government Accountability Office is an informal process, the duty to keep a tribunal informed is still the rule that protestors and attorneys must follow.

Protesting contractor: Commandeer Construction Co. LLC, Twinsburg, Ohio

Contracting agency: Department of Veterans Affairs

Reconsideration issue: Whether the protest decision should be reviewed, given newfound information.

GAO decision, Feb. 15, 2012: Reconsideration denied, but recommendation modified.

Post-Mortem: The VA asked the GAO to reconsider its earlier decision in a protest filed by CCC, based on what it claimed were “pertinent developments.” Here’s some background: The original decision involved CCC’s status as a service disabled, veteran-owned owned small business, and the VA’s requirement to fast track its verification based on terms of the solicitation. In the original Dec. 20, 2011 decision, the GAO sustained the protest in favor of CCC and recommended that VA review CCC’s status to determine whether they could be verified. It also recommended that the VA pay CCC’s cost for pursuing the protest.

The irony here is that the VA had already made a decision and denied CCC’s verification more than 6 weeks before a final protest decision was issued by the GAO – unbeknownst to the contracting officer and legal counsel at VA. In its request for reconsideration, having found out about the verification denial, the VA asks the GAO to determine that one office of the VA should not be responsible for knowing the most pivotal fact on which the case turned if that information is in possession of a another office of the agency. The GAO correctly denied reconsideration stating “we see no excuse for the failure of VA’s CO [contracting officer], and the legal counsel, to ascertain the status of CCC’s request [for verification].”

The GAO didn’t stop with a rejection of the VA’s excuses. They followed with a stern punishment to CCC and a lesson for all protestors. CCC also knew nearly two months before the final GAO decision that their verification had been denied. They believed that they were under no duty to disclose that fact to the GAO. The GAO took offense to spending several months of time and resources on a moot issue, because one party should have known and the other party knew but failed to inform them of a material change in the case.

With obvious irritation, the GAO modified its earlier decision and removed its recommendation for VA to pay CCC’s cost for pursuing its protest.