Congress directed the Secretaries of the Interior and Agriculture to jointly examine the land acquisition policies and practices of their agencies and to submit a report of findings and recommendations to the House and Senate Committees on Appropriations. To support this effort, the agencies issued a bestvalue solicitation seeking a contractor to analyze the existing process, identify areas for improvement, develop a multiyear strategy, and develop an implementation plan for future years. The solicitation provided for a two-step evaluation process. First, offerors were rated on a go/no-go basis regarding their past experience. The offerors who were rated “go” were then requested to provide a technical offer by means of a one-hour oral presentation with supporting documentation that addressed their proposed management approach and technical capability. The oral presentations were videotaped and constituted the technical offer. Price was evaluated separately.
At the conclusion of the oral presentation, each offeror also participated in a question and answer (Q&A) session with the technical evaluation panel. The Q&A sessions were not videotaped or otherwise recorded. Instead, they were documented by handwritten notes taken by members of the evaluation panel and other government personnel who were present.
After the Q&A session, the evaluation panel concluded that the protester’s offer was technically unacceptable. A few days later, the contract specialist (not a member of the evaluation panel) prepared a technical consensus report which reflected the conclusions reached by the evaluation panel. The report specifically referenced the protester’s failure to articulate its methods or strategies in a variety of areas during the Q&A session.
After completing the technical consensus report, the contract specialist prepared another document to memorialize the Q&A session. This Q&A document was provided to the protester who was given two business days “to validate the written answers to the questions.” The transmittal notified the protester that elaboration or revision was not permitted, but if the answers did not capture information that was given during the Q&A session, the protester was to use track changes to include the information. The changes were to be reviewed by the government and accepted and/or deleted when confirmed. The protester complained that the Q&A document mischaracterized its answers and the government permitted the protester to submit its own version of the answers. The government made a few edits to the protester’s version and then accepted it as an accurate memorialization of the Q&A session. In addition to providing much more detailed answers, the final version of the Q&A document addressed some of the weaknesses noted in the evaluation panel’s consensus report.
After receiving notice that it was not selected for contract award and a written debriefing letter which outlined the strengths and weaknesses of its proposal, the protester decided to file a protest with the Government Accountability Office (GAO) but chose to proceed without legal counsel. The protester alleged that the agency unreasonably evaluated its proposal because the assigned weaknesses were adequately addressed during the oral presentation and Q&A session.
Because the technical consensus report and final Q&A document were inconsistent with one another, it was unclear whether the evaluation panel reasonably understood and considered the protester’s answers at the oral presentation. In these circumstances, GAO concluded that the documentation did not adequately support the agency’s decision and therefore sustained the protest.
By the time GAO issued its decision, however, the awardee had substantially completed all of the work. If the protester had filed with GAO within 10 days of contract award, it could have secured an automatic stay of performance while the protest was being decided. The Competition in Contracting Act generally requires that the government stay contract performance when a protest is filed with GAO within 10 days of award, unless the head of the agency overrides the automatic stay by determining that exigent circumstances or the best interests of the United States compel contract performance to proceed. By proceeding without the benefit of knowledgeable government contracts counsel, the protester missed the automatic stay of performance deadline and lost the opportunity to receive award of the contract as a result of its success on the merits of the protest, even though it timely filed its protest with GAO within 10 days of being notified of the agency’s decision.