Sweet justice in a protest decision? Not necessarily.

Sweet justice in a protest decision? Not necessarily.

In December of last year I wrote in Battle Lines about a protest by Exelis that was sustained because, according to GAO, the Department of State treated incumbent PAE differently than other bidders. Now here we are again: DOS reevaluated the offers and made another award to PAE, and GAO again sustained a protest from Exelis – saying that the government did not follow its own evaluation criteria.

Protesting contractor: Exelis Systems Corp.

Contracting agency: Department of State

Protest issue: Deference for the incumbent

Decision: Sustained in part and denied in part by the Government Accountability Office May 20, 2013

Post-mortem: Both protests involve a request for proposals for operations and maintenance support services for embassy facilities in Iraq. In the first, Exelis successfully argued that the DOS had failed to follow the terms of the solicitation and the stated evaluation criteria – ultimately providing the incumbent preferential treatment. The GAO recommended that the DOS either modify its RFP and accept new proposals or reevaluate the proposals and make a new award. DOS chose to do the latter.

In it reevaluation, DOS determined that it had failed to properly evaluate Exelis and increased the rating in three of the five evaluation factors, but PAE’s evaluations remained the same. The main contention of Exelis’ second protest was also argued in its first — that the level of effort and staffing plan in the sample task needed to be evaluated by DOS. DOS did not agree.

Specifically, PAE proposed a base year staffing plan that the GAO found to be reasonable. However, PAE “significantly reduced the level of effort it proposed to perform… in later years of the contract.” The GAO found that the evaluation record “is silent on the question of PAE’s reduction in its proposed level of effort and makes no attempt to explain how PAE might be able to perform the requirements in the later years of the contract.” Based on this allegation the GAO sustained the protest.

To someone who represents clients daily in bid protests, the Exelis decisions are a case study of what is right and wrong with the bid protest process. On the one hand, Exelis has achieved justification twice — with both of its protests sustained. On the other, there is little doubt in my mind that PAE will eventually get this contract. The DOS will continue to reevaluate and adjust its approach until it appeases GAO and the protest is denied.