Chandler’s Last Chance for a Bid Protest
Recently, the General Accountability Office (“GAO”) denied Chandler Solution’s request to reconsider its denial of Chandler’s earlier bid protest. Originally, Chandler challenged the Federal Emergency Management Agency’s (“FEMA”) contract award to JDR Unlimited, LLC for armed guard services. FEMA’s contract award was designed as part of a set-aside for service-disabled veteran-owned small business.
According to FEMA’s bid requirements, the Agency required that the contractor obtain commercial armed guard service licenses by the bid request’s submittal deadline. In addition, FEMA’s bid requirements stated that bidders must obtain insurance, must obtain weapon permits for the bidder’s employees, and must adhere to minimum age requirements. Originally, Chandler argued that JDR failed to provide sufficient proof that it had obtained commercial armed guard licenses. In addition, Chandler argued that JDR had backdated its license application and check that it used to prove that it had paid state officials in time. The GAO denied Chandler’s original protest because it found that FEMA had properly waived its commercial armed guard service license requirement.
In Chandler’s reconsideration request, Chandler argued that the GAO’s decision contained several factual errors. First, Chandler argued that the GAO had erred because it originally found that only Chandler Security, but not Chandler Solutions, was properly licensed (Chandler Solutions and Chandler Security were both owned by the same parent company; in its original decision, the GAO did not consider the affiliates as the same entity). Second, Chandler argued that the GAO should have determined that Chandler was properly licensed because FEMA admitted that Chandler was properly licensed. In addition, Chandler argued that FEMA acted in bad faith when it relied on JDR’s allegedly backdated license application and cancelled check. Unfortunately for Chandler, the GAO disagreed with every argument.
According to its rules, the GAO will not reconsider a bid protest unless the complaining party demonstrates that the GAO’s mistake (either a factual or legal mistake) would have changed the outcome of the bid protest. The protestor cannot merely repeat earlier arguments.
Here, in regards to whether Chandler was properly licensed, the GAO determined that Chandler was essentially re-arguing its earlier losing argument that it had satisfied all of FEMA’s requirements. Since the GAO determined that Chandler was merely repeating a previously raised point, the GAO declined to accept Chandler’s argument.
Moreover, the GAO will deny a protest unless the protestor can demonstrate that it had a substantial chance of receiving the award. Here, the GAO determined that, even if it had made errors (the GAO did not agree that it had made errors), those factual errors would not have changed its decision regarding Chandler’s bid protest. Seemingly turned off by Chandler’s factual arguments, the GAO did not specifically address Chandler’s bad faith claim. Accordingly, the GAO denied Chandler’s request for reconsideration.
Although Chandler could not ultimately change the GAO’s mind, its situation provides insight into how future protestors can structure their arguments, so as to ultimately secure the contract. If your business is involved in government contracting and procurement, the experienced attorneys at Whitcomb Law, P.C. can help you protect your rights.