It’s a lesson we all learned in grade school: two wrongs don’t make a right. Turns out, the same rule applies during proposal evaluation, as GAO confirmed in a recent decision.
Today’s return to the playground involves Command and Control Construction, LLC, B-419567 (Comp. Gen. Apr. 22, 2021), which sought a contractor to provide leased office space in Fairbanks, Alaska for an outpatient clinic.
Among other things, the solicitation established unique “neighborhood-characteristic” requirements. These requirements defined the general physical characteristics for proposed properties. The solicitation divided the neighborhood characteristics into two broad categories: inside the city center and outside the city center. City center properties were required to “be located in a prime commercial office district with attractive, prestigious, and professional surroundings with a prevalence of modern design and/or tasteful rehabilitation in modern use.” In short, the VA wanted an upscale professional building.
The VA received six offers in response to the solicitation, including Command and Control Construction. The VA subsequently reviewed offers and made an award to G2 Construction.
As relevant to the neighborhood-characteristic requirement, G2 Construction proposed a property that was adjacent to a steel workshop, a restaurant supply store, and a used car dealership. While respectable businesses, these neighbors did not embody the “prestigious and professional surroundings” the VA sought.
After learning of the award, Command and Control Construction protested the decision to GAO. Unsurprisingly, Command and Control Construction alleged that the property proposed by G2 Construction did not meet the solicitation’s neighborhood-characteristic requirements.
In response, the VA argued that it had reasonably evaluated G2 Construction’s location because it was outside the city center. The VA’s evaluation record, however, did not support this conclusion. To the contrary, the evaluation record was clear that the VA had understood G2 Construction’s property to be inside the city center. More problematically, there was no explanation from the VA how a property located next to a used car dealership met the requirement for attractive, prestigious, and professional surroundings.
Since the VA had failed to provide any explanation of how G2 Construction’s property complied with the terms of the solicitation, GAO was unable to conclude the VA’s evaluation was reasonable. In sort, the VA’s conclusion that G2 Construction’s proposed property met the requirements of the solicitation was wrong.
Usually, an unsupported agency action would result in a sustained protest. In this case, however, there was a second error. Command and Control Construction had proposed a property approximately 300 feet from G2 Construction’s proposed property. Consequently, Command and Control Construction’s proposed property was also located next to the same used car dealership, kitchen supply store, and steel workshop.
This is where Command and Control Construction was also wrong. If G2 Construction’s location did not meet the neighborhood characteristic requirements, Command and Control Construction’s property would also fail. Thus, had the VA eliminated G2 Construction’s proposal because it did not meet the neighborhood characteristic requirements, Command and Control Construction’s proposal would also be eliminated.
Consequently, GAO concluded Command and Control Construction was not prejudiced by the VA’s evaluation errors. In the bid protest context, prejudice refers to the protesting party’s likelihood of receiving the award under a proper evaluation. A protester must be prejudiced for GAO to sustain the protest. By proposing a property in the same area as G2 Construction, Command and Control Construction was not prejudiced by the VA’s evaluation errors because it would have also been eliminated from competition under a proper evaluation.
GAO denied the protest.
GAO’s decision in Command and Control Construction highlights that it’s not enough to identify an error in an agency’s evaluation. A protester must also demonstrate how the alleged error materially impacted its opportunity for award. Command and Control Construction identified a material error in the VA’s evaluation, but correction of the error would have eliminated it from competition, too. As such, Command and Control Construction was not prejudiced by the VA’s error.
This is a case where two wrongs do not make a sustained protest.
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