All the Facts Should Matter – Even to GAO  

By Alan Chvotkin
PSC Executive Vice President and Counsel

October 1, 2019

The GAO bid protest process is designed to rapidly get all of the issues regarding the protest of an agency procurement on the table and then look at how the law and the facts relate to those issues – from the agency’s and the protestor’s perspective. That process often helps the buying agencies decide to take corrective action without pursuing even this streamlined process. But it also puts GAO in the best position to make its decision within the fixed timeframe for action. And GAO doesn’t miss their required timetable for decision. 

GAO overwhelmingly gets its decisions right – notwithstanding the understandable disappointment by either a protestor or the buying activity. It is rare that GAO decisions are overturned on a request for reconsideration because the standard they apply is so high. But in an opinion issued in August, SBD Alliant, LLC,  GAO may have reached the right result but for the wrong reason. 

In the original initial protest decision,  GAO sustained the challenge to the issuance of a task order under a Defense Health Agency procurement request posted on GSA’s e-Buy portal. In Amendment 3 to the solicitation, the requirement for submitting past experience without a completed CPARS under certain specified circumstances was eliminated. AlliantCorps was not awarded the work and filed a protest based on the agency’s selection of a better offer, including evaluating this eliminated provision that appeared to provide competitive prejudice to the protestor. But apparently when the protest was filed, the protestor didn’t realize the agency had changed that requirement. When GSA submitted its agency report, it, too, failed to notice that the provision was eliminated. That oversight extended to the apparent successful offeror, who intervened in the case.

GAO upheld the challenge, recommended that GSA reconsider the past performance requirement and determine whether to amend the solicitation. GAO also awarded the protestor its cost of filing and pursing the protest. Only after GAO announced its decision did the GSA contracting officer “remember” that Amendment 3 eliminated the challenged provision. So, both GSA and the winner asked GAO to reconsider its decision based on these new facts.

But like everything else associated with GAO bid protest process, there are strict rules and timeframes. A request for reconsideration is no different. To obtain reconsideration, the requesting party must explain why reversal or modification of the earlier decision is warranted and specifying the error of law or information not previously considered that was unavailable to the requestor when the initial protest was being considered. In retrospect, all of the parties—but not the GAO—were “aware” of Amendment 3; they just didn’t know it. The protestor should have come forward and withdrawn its protest when it, too, learned of the substance of Amendment 3.

GAO denied the request to reconsider its decision. But based on the newly disclosed information, GAO concluded that there was thus no impropriety in how the agency conducted the procurement, so GAO modified the recommendation for the agency to evaluate changes to the solicitation; GAO also withdrew the relief it granted to the protestor by denying the protestor the entitlement to costs for filing and pursuing the protest. But it did not grant the request for reconsideration because, based on the information that was available to it at the time it made its decision, GAO concluded that it was the “right” legal answer.

Mistakes happen and unintentional omissions should be corrected as soon as possible. Here, it is regrettable that the information concerning Amendment 3 only came to light after the request for reconsideration was filed at GAO. Officials at GAO acknowledged as much, and properly modified its earlier decision relating to both the corrective action and the allowance for cost recovery. 

But rather than reaffirm its substantive decision based on an incomplete set of facts, on reconsideration GAO should have simply dismissed the protest. Let’s hope that these unusual facts result in this case being an anomaly in the GAO protest logs.