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Pre and Post Award Bid Protest

Worldwide Language Resources Awarded Reimbursement From the Army

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WorldWide Language Resources, Inc. (WWLR) of North Carolina requested the Department of the Army reimburse it for the reasonable costs of filing and pursuing its protest of the agency’s decision to issue a task order to Valiant Government Services, LLC. WWLR contention was that the agency failed to take prompt corrective action to clear meritorious protest grounds.

Background
In 2017, the Army issued a request for task order proposals (RTOP) under the Department of Defense’s Language Interpretation and Translation Enterprise II (DLITE II). The RTOP was to acquire linguist support for the Combined Joint Task Force-Operation Inherent Resolve, the Department of State Office of Special Cooperation-Iraq, and the U.S. Army Central. In July 2019, the Army notified WWLR the task order was issued to a different bidder, Valiant. WWLR filed a protest challenging the agency’s evaluation of Valiant’s cost and technical proposals, its failure to credit WWLR’s proposals with additional strengths, discussions with WWLR, and its best-value tradeoff determination. A month later, WWLR filed a supplemental protest challenging the agency’s cost realism evaluation considering a reduction in Valiant’s proposed cost. WWLR later filed comments on a report the agency made in response to WWLR’s protest and submitted a second supplemental protest. It challenged aspects of the Army’s cost realism evaluation and argued the agency unreasonably and disparately evaluated Valiant’s proposal and the Army’s best-value tradeoff was flawed due to these errors.

On September 30, 2019, WWLR filed its third and final supplemental protest. This time it challenged additional elements of the cost realism evaluation, discussions with offerors, and the “cross walk” process used by the Army to assess the impact of Valiant’s cost elements on its technical approach.  On October 4, 2019, the Army announced it would take corrective action. It stated it would reevaluate proposals and make a new source selection decision. The agency reserved the right to reopen discussions and solicit revised proposals.

GAO Opinion
The GAO noted the Army did not dispute three of the protest grounds, and took corrective action based on the errors identified. WWLR’S protests included arguments that the agency failed to conduct an adequate cost realism evaluation, conducted misleading discussions with the protester, unreasonably and unequally evaluated the awardee’s proposal, and the agency’s best-value determination was flawed. The Army argued that with the exception of these arguments, WWLR’s protest grounds were not meritorious and readily severable from these grounds. The GAO, however, noted that protests are meritorious “where a reasonable agency inquiry into the protest allegations would have shown facts disclosing the absence of a defensible legal position.”  The GAO concluded the Army did not take corrective action based on the errors identified and found the Army did not take prompt corrective action. GAO considers prompt corrective action to be if it is taken before the due date for the agency report responding to the protest. The due date for the agency report was September 18, 2019, but the agency took corrective action, nearly a month later on October 4, 2019.

The agency argued the remaining protest issues are severable because they are based on different facts and legal theories. The GAO disagreed. It found the protester’s arguments shared a common set of facts, common legal theory, and are not severable from each other. It noted the protests were grounded in errors made by the Army to identify and account for Valiant’s low costs within its evaluation. WWLR asserted that these errors impacted the evaluation of Valiant’s management and staffing plan, and the agency should have taken Valiant’s low compensation rates into account when assigning strengths to Valiant’s proposal. One example is WWLR’s protest alleging the Army conducted a “cross walk” analysis of the “impact of Valiant’s pricing …on its technical approach.” WWLR asserted this inadequate evaluate allowed Valiant to “reap the reward of an ‘outstanding’ technical rating and multiple strengths without any consideration whether its cost approach would allow it to achieve those lofty promises.”

GAO stated that when the protester’s challenges did not directly reference the agency’s cost-realism evaluation, it noted they were intertwined with WWLR’s successful protest grounds. It asserted the agency conceded WWLR’s challenge to the evaluation of Valiant’s staffing plan was “clearly meritorious.” It viewed this successful challenge as sharing a “common factual basis with the protester’s other technical evaluation challenges; both the meritorious and non-meritorious issues are intertwined and interrelated with the agency’s flawed evaluation of Valiant’s proposal.” The GAO found the technical evaluation issues were not severable.

Conclusion
The request was granted. GAO recommended the Army reimburse WWLR the reasonable costs of filing and pursuing its protest challenging the agency’s decision.

For more information on filing a protest to the Government Accountability Office, contact Whitcomb Selinsky PC.

About the AuthorWhitcomb, Selinsky, PC

Whitcomb, Selinsky, PC is a full service law firm serving clients’ diverse legal needs. Our focus is in helping people in their interactions with federal, state and local governments.

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