Sometimes bid protests stand a better chance in court than with GAO

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A disabled veteran-owned training contractor found out that you can do better protesting an award in the Court of Federal Claims rather than with the Government Accountability Office. That’s because you can get more information in court filings. Smith Pachter McWhorter procurement attorney Joe Petrillo illustrated that point with a recent case on Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: Joe, I guess this idea of documentation can really make the difference in a protest. Tell us about this case.

Joseph Petrillo: Sure. This case arose from a procurement by the Special Operations Command of a single award task order contract for training services. The contract was called Raptor 4. As you mentioned, it was a total set aside for service disabled veteran owned small businesses. And it was a big contract, it was worth about a quarter of a billion dollars over a potential seven years. There had been some GAO protests on this. And finally, the Court of Federal Claims sustained a protest by Oak Grove Technologies that had protested an award decision to F3EA. And that decision was handed down back in August, but the reverberations from it continue. Just recently, the court decided a motion for sanctions against the government for withholding documents. Let me explain how that happens, because it does illustrate some of the differences between court protests and GAO protests

Tom Temin: And before sanctions can take the form of monetary awards?

Joseph Petrillo: Exactly. We’ll find out more about that when we get to the final resolution on the sanctions motion. The administrative record in the protest differs depending on whether the protest is filed the GAO or the court. At GAO, the agency can respond only to those protest allegations that are in the protest so they can provide the documents relevant to that. In court, however, you need to address those issues. But you also need to provide the court with enough information to determine how the award was made. What was the process? What information was before the agency when it made the decision? Even if that information wasn’t specifically considered, if it was information dealing with the award decision, it needs to be in the record. Here, there were two documents that had not been included in the administrative record at the court. They hadn’t been in GAO either, but a separate record was filed with the court, and the record lacked a couple documents. One of the documents was a DCMA report on another offeror. How did that have anything to do with this? Well, in that instance, the agency had argued that Oak Grove didn’t have standing because it wasn’t next in line for award. There was an intervening offeror. However, the DCMA report had recommended not awarding to that intervening offeror because it lacked financial capability. So that really went to the issue of whether or not they were standing in Oak Grove to bring the protest.

Tom Temin: In other words, Oak Grove would have moved up a notch had the intervening or the contractor in between been knocked out for financial lack of resources.

Joseph Petrillo: Exactly. It would be next in line for award and would have standing to protest the decision to award to F3EA.

Tom Temin: Yeah, so an important document didn’t make it into the original record, in other words.

Joseph Petrillo: Right. And another important document was a letter terminating the first chairman of the source selection evaluation board. Now, the activities of this chairman were at issue in the protest, and they formed part of the reason why it succeeded in court. There is an allegation and some proof that he had steered award to F3EA, for example, the solicitation required the offerors to respond to his three sample task quarters to show that they had the capability to perform. The evidence was that he had specifically drafted those sample task quarters to track work that the incumbent had already performed. So this is something that already done and they would have been able to do a good job of it. There were other serious allegations as well, and they were part of the reason why the protest was upheld. The letter about dismissing the SSEB chairman didn’t specifically address all those issues, but they had said that he had in numerous revisions of the final report of the SSEB omitted important evaluation findings. So it was definitely in the same area of manipulating the award process.

Tom Temin: We’re speaking with Joe Petrillo. He’s a procurement attorney with Smith Pachter McWhorter. And two questions. Just a quick background question, people tend to go to GAO because it’s more streamlined process and faster than court partly because there’s less paperwork?

Joseph Petrillo: That’s part of it, yeah. And it is an administrative process. GAO has a lot of expertise. And there tend to be fewer procedural matters, then you run into in court. But sometimes those procedural matters can get you the information you need to win a protest.

Tom Temin: Right. And my second question is, how do you know what documents might exist in the first place, if they hadn’t been introduced to the court, or to GAO for that matter?

Joseph Petrillo: Well, there are a couple of ways. One is to get a situation where you’re finding gaps in the record. Usually documents are cross reference other documents. And the other is sometimes in the process of getting oral argument in court, or to some extent you get testimony from people, you can learn about documents in that way as well.

Tom Temin: So you would use discovery in other words to ask for those documents.

Joseph Petrillo: It’s not exactly discovery like you’ll have in normal litigation, you don’t usually get that in this instance because the question is reviewing the administrative record. But you can usually tell when there’s something that should be there that isn’t there, or there are decisions that are aren’t adequately explained. And if you can get the court to focus on those and probe on those, you can then move to have the record expanded to include those documents.

Tom Temin: Alright, so in this case, Oak Grove found out then through documentation that was later introduced, that one, they had a better chance than they thought, because the number two offeror wasn’t financially responsible. And they found out that the source selection was kind of tainted because of activities of the chairman. How did that change the outcome? How does it stand? What did the court decide here?

Joseph Petrillo: Well, back in August, the court had decided that the Army had to redo its investigation of Procurement Integrity Act issues, which kind of blew them off and seemed inadequate given the seriousness of the allegations and the strength of proof. And that it would have to either completely re solicit the procurement or at least reopen it and conduct discussions with those offerors still remaining in the procurement. In this most recent decision in November. It sanctioned the government for failing to provide the documents it should have provided in the administrative record. And everyone had to spend a lot of time and effort of finding out about them and getting the Army to provide them over its objections, and then having to argue about the sanctions. So the court awarded the protester its legal fees in pursuing that information and getting and participating in the sanctions process. The fees were awarded against the Army since it appeared that they had kept the documents from the Department of Justice attorney when the administrative record was filed.

Tom Temin: Got it. And so now the award itself though is open to question, it might not go forward with the original winner.

Joseph Petrillo: The court enjoined the Army from awarding any new task orders under the contract and wanted the Army to proceed with implementing the remedy it had. I would also say here that given the sanctions and the resolution of that, I think the moral of the story is if you’re a contracting officer, you should provide a full set of documents to your counsel and let counsel decide what to provide in the protest process.

Tom Temin: Be transparent and listen to your lawyer. Two good pieces of advice from Joe Petrillo, procurement attorney with Smith Pachter McWhorter. As always, thanks so much.

Joseph Petrillo: Thank you, Tom.

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