If an agency lacks jurisdiction to decide a particular agency-level protest, can its dismissal of that protest on the grounds that the agency didn’t have jurisdiction to hear the protest in the first instance really be considered “adverse agency action”?
In a protest before the GAO, Logis-Tech, Inc., a small business, protested award of a task order to Professional Solutions Delivered LLC (PSD). Logis-Tech argued that the Marine Corps misevaluated its proposal submitted in response to a USMC request for task order proposals (RFTOP). To determine which vendor provided the best value, the Marine Corps evaluated price and three non-price factors: understanding and approach, staffing and personnel, and past performance. Price was of equal importance to the three non-price factors combined. In its evaluation, the Marine Corps gave Logis-Tech the same score as PSD, in the categories of understanding and approach and past performance, but gave PSD an “outstanding” on Staffing and Personnel, while Logis-Tech received a “good” in this category. Moreover, PSD’s quoted price was $20.1 million and Logis-Tech’s quoted price was $30.1. For these reasons, USMC had decided that PSD’s proposal provided a better value for the government.
On September 26, 2012, the Marine Corps notified all vendors that it had selected PSD for the task order and sent a debriefing letter to each vender explaining the evaluation factors and ratings. On October 5, 2012, Logis-Tech filed an agency-level protest claiming the Marine Corps had failed adequately to consider its and PSD’s proposals with regard to the staffing and personnel factor. On October 12, 2012, the Marine Corps dismissed the protest on the grounds that it did not have jurisdiction to hear a protest on a task order. On October 16, 2012, within 10 days after learning of the dismissal of the agency-level protest, Logis-Tech filed a protest with the GAO raising the same claims it made in the agency-level protest.
According to the GAO Bid Protest Regulations, a vendor must file a protest with the GAO within 10 days of initial adverse agency action. At the GAO, the Marine Corps argued that, because it lacked jurisdiction to hear a task order protest, the timeliness of Logis-Tech’s protest must be measured from 10 days after the date Logis-Tech received USMC’s debriefing letter, not the dismissal of Logis-Tech’s agency-level protest for lack of jurisdiction. This raised the question of whether the “initial adverse action” was the debriefing letter or the dismissal of the agency-level protest.
The GAO sided with Logis-Tech and interpreted initial adverse agency action to mean the point where the protester first actually or constructively learned that the agency denied or dismissed the protest. In this case, Logis-Tech learned that the agency dismissed the protest on October 16, 2012. Therefore the GAO held that the protest was timely. The GAO then turned to the merits of Logis-Tech’s protest and held that the agency acted within its discretion when it evaluated and scored the proposals on the staffing and personnel factor. Therefore, although finding the protest to be timely, the GAO denied the protest on the grounds that there was no error in the agency’s evaluation.
We (the authors) believe this to be a case of first impression for the GAO. The authors are not aware of a prior protest decision on whether an agency’s dismissal of an agency-level protest on the ground that it lacked jurisdiction to decide the protest could itself be considered “adverse agency action” if the agency lacked the jurisdiction to take any action! Of course, one hand of the GAO giveth, while the other taketh away. The protest was found timely – and then denied. Logis-Tech, Inc., B-407687, January 24, 2013.
Practice Tip: Timeliness at the GAO following an agency-level protest continues to be a landmine for contractors and counsel alike.