A Government Accountability Office (GAO) bid protest decision issued last week in DNC Parks & Resorts at Yosemite, Inc., reveals that the National Park Service (NPS) is continuing its approach of thumbing its nose at GAO. That is, asserting once again, that GAO does not have jurisdiction over bid protests relating to concessions contracts, NPS once more refused to provide a report (i.e., a brief) to GAO on the substance of the protest.
In response GAO
- Iterated its position that it, and not NPS, is the one to determine whether a protest falls within GAO's jurisdiction.
- Reaffirmed its view that where, under a concessions contract, NPS is acquiring goods and services of more than a de minimus value, it does have bid protest jurisdiction (In doing so, GAO rejected a contrary view expressed by at least one judge at the Court of Federal Claims) and
- Decided the case solely on the basis of the documents submitted by the protester.
Unfortunately for DNC, that was not sufficient.
Among other things, DNC, the incumbent concessioner at Yosemite, argued that the estimate in the Prospectus regarding the value of Intangible Other Property that any new concessioner would be required to buy from DNC was misleading and prevented the government from properly comparing proposals. (The estimate in the Prospectus for Intangible Other Property was $3.5 million vs DNC's estimate of $51.2 million) (NPS's estimate for all property was $30.6 million.)
GAO first found that any consideration of the reasonableness of the parties' disputed positions regarding the value of Intangible Other Property would require it "to effectively resolve a dispute arising under the terms of DNC's existing contract;" something that is not part of GAO's protest function. Furthermore, noting that the Prospectus advised offerors of the disputed valuation and the need for them to make their own valuation, GAO also rejected DNC's assertion that a final, determined value, rather than a mere estimate was necessary for purposes of competition. GAO even went so far as to find that DNC was not an interested party with the ability to challenge the alleged solicitation defect because it would not suffer any competitive harm if the estimate were erroneous, i.e., other offerors, but not DNC, must account for the contingency of negotiations and possible litigation over the final value of DNC's property. Lastly GAO rejected the argument that NPS' supposedly unreasonable estimate will dilute DNC's incumbent advantage, finding that a protest regarding this kind of harm does not fall within the scope of GAO's bid protest jurisdiction.
In sum, DNC was able to get its foot in the door at GAO, but once that occurred, GAO quickly showed it the door.