At the Government Accountability Office (“GAO”) be sure to present all of your facts and arguments at once—do not provide them in a “piecemeal” fashion. (Piecemeal is defined as “made or accomplished piece by piece in a fragmentary way. Merriam Webster’s College Dict., 11th Ed 2003). A recent bid protest demonstrates the danger of providing a piecemeal presentation or development of protest issues. Military Freefall Solutions, Inc., B-422300, March 19, 2024.
In Military Freefall, the US Marine Corps (“USMC”) sought advanced training support services for parachute operations using the commercial acquisition procedures of Federal Acquisition Regulation (“FAR”) Part 12. Two offers were received, and Military Freefall protested the award, alleging that Agency failed to evaluate its technical proposal properly. In fact, the protester furnished for the first time in its comments on the agency’s report certain additional documents and information to support its proposal calculations as follows:
- the estimated weight of a combat loaded marine;
- the useful load of its protested proposed aircraft;
- a link to the U.S. Transportation Command’s regulation appendix on aircraft load planning and documentation;
- the air mobility command operations manual of a private company;
- the Federal Aviation Administration regulation on fuel requirements for visual flight rule conditions; and
- a sworn statement of the president of WIN Aviation.
The GAO stated as follows:
Our Bid Protest Regulations do not contemplate the piecemeal presentation or development of protest issues; when a protester raises a broad ground of protest in its initial submission but fails to provide details within its knowledge until later, so that a further response from the agency would be needed to adequately review the matter, these later issues will not be considered [Cite omitted]…Indeed our regulations obligate a protester to set forth all of the known legal and factual grounds supporting its allegations because the piecemeal presentation of evidence unnecessarily delays the procurement process and our ability to resolve protests within the requisite 100 day period[].
GAO’s position is based on its regulations which state that a protester must “set forth a detailed statement of the legal and factual grounds of protest… 4 CFR 21.1(c)(4).
In this particular case, the GAO held that the piecemeal presentation of evidence that Military Freefall presented later in the protest was directly probative of its original protest allegations, and were available to the protester when the protest was submitted. Therefore, the GAO did not consider the later submissions, and instead relied on agency technical personnel to make its judgments. The protest was denied.
Takeaway. Do not submit piecemeal protests or other submissions to the GAO on a piecemeal basis. Provide all of the legal and factual grounds of protest at the earliest time possible.
Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.