Are there any viable defenses when an Agency wants to dismiss a protest solely because the protester made a minor and non-substantial error in the protest filing itself?

[ax12901]

In an Agency's filing for a dismissal of a protest, they principally cited a minor and non-substantial error in the protest itself (not in the original offer, but in the protest of the award), which appears to be a distraction from the main issue. They did not address the main claim in their request for dismissal. It seems that protests often contain some minor factual errors, and they typically do not view these as fatal flaws unless the errors go to the core of the protestor's argument. Minor factual inaccuracies alone should not be sufficient grounds for dismissing a protest. But that's just logic speaking.

Does anyone know of any GAO or COFC decisions that have touched on this point?

[Retreadfed]

You need to be more specific as to what the basis for dismissal is.  What you consider a minor and non-substantial error, might in fact be a valid basis for dismissal.

[Neil Roberts]

@ax12901, The GAO Office of General Counsel, GAO: A Descriptive Guide states the following:

The bid protest process at GAO begins with the filing of a written protest. Unless the protest is dismissed because it is procedurally or substantively defective (for
example, the protest is untimely or the protest fails to clearly state legally sufficient grounds of protest), the agency is required to file a report responding to the protest.
The protester then has an opportunity to file written comments on the report.

 

[Jamaal Valentine]

What is the protest venue?

[ax12901]

On 10/16/2023 at 2:28 PM, Retreadfed said:

You need to be more specific as to what the basis for dismissal is.  What you consider a minor and non-substantial error, might in fact be a valid basis for dismissal.

The basis of the dismissal is that the protest claimed that the page limit was 5 pages when the Government said in an amendment the page limit increased to 15 pages. More specifically, the protest mentioned in a non-substantive way (i.e., it was not the main argument, which was actually centered around unstated evaluation criteria) that there wasn't much space in the technical approach because it was limited to 5 pages. The Agency lawyer pointed out that the actual limit was 15 pages and asked for a dismissal due to this factual error.

Clearly, I understand a dismissal if it was the other way around. A 15 page proposal when the page limit is 5 pages. But a 5 page proposal when they had in the Q&A increased the page limit to 15 pages appears irregular and a distraction from the main issue.

[ax12901]

21 hours ago, Neil Roberts said:

@ax12901, The GAO Office of General Counsel, GAO: A Descriptive Guide states the following:

The bid protest process at GAO begins with the filing of a written protest. Unless the protest is dismissed because it is procedurally or substantively defective (for
example, the protest is untimely or the protest fails to clearly state legally sufficient grounds of protest), the agency is required to file a report responding to the protest.
The protester then has an opportunity to file written comments on the report.

 

Clearly in this case, the Agency lawyers are trying to go for a shortcut and avoid having to prepare an agency report because they are claiming the protest is substantively defective since it made a factual error in stating the number of pages that were allowed for the technical approach. The point is that this is clearly not a substantive defect, but I was wondering if more could be done to support the notion that misstating a page limit in a protest is nonsubstantive, then just stating that as an assertion.

[ax12901]

6 hours ago, Jamaal Valentine said:

What is the protest venue?

GAO

[Oyster]

GAO's descriptive guide explains, "Once the protest is received, the agency and/or an intervenor may request that GAO summarily dismiss the protest or some of its grounds. 4 C.F.R. § 21.3(b). Where summary dismissal may be appropriate, the request for dismissal should be filed as soon as practicable after the protest is filed. Id. Unless it is clear that dismissal is appropriate, GAO generally will permit the protester to file a response to the dismissal request. GAO will promptly address the dismissal request. If necessary, GAO will suspend the agency report while it considers the dismissal request. If GAO grants the request, either in whole or in part, GAO will not require the agency to prepare a report in response to the protest or in response to those grounds of protest that were dismissed."

 

I'm not aware of a GAO decision that specifically addresses your "non-substantive-error-in-the-protest-itself" issue, but it appears that you are afforded the opportunity to file a response.  If there are no decisions on point, it seems that you would just respond directly to the agency's assertions in line with the argument you set forth earlier. 

[ax12901]

Different topic but concerning the same protest: Has anyone ever seen an Agency counsel claim as a grounds for dismissal that a protester did not ask for a debriefing on a solicitation that was competed under FAR Subpart 8.4 where only "brief explanations" are required by FAR 8.405-2(d)? Seems like another distraction from the main issues as that would appear to require offerors to always ask for a debriefing when 95% of the time, COs would refuse since they only have to give a "brief explanation" under FAR Subpart 8.4. (Either this, or the Agency counsel in this case failed to notice that the solicitation itself states it isn't a FAR Part 15 solicitation.)

BTW, those were the only two grounds for dismissal. Factual error on number of pages and not explicitly asking for a debriefing on a FAR Subpart 8.4 solicitation.

[joel hoffman]

If the main argument is independent of the other protest arguments, I often read where the GAO doesn’t dismiss a protest just because other points have no bases for sustaining the protest. They will address the separate, main argument.

On 10/17/2023 at 2:17 PM, ax12901 said:

More specifically, the protest mentioned in a non-substantive way (i.e., it was not the main argument, which was actually centered around unstated evaluation criteria) that there wasn't much space in the technical approach because it was limited to 5 pages. The Agency lawyer pointed out that the actual limit was 15 pages and asked for a dismissal due to this factual error.

Edit: Of course, if there are other grounds for dismissal, such as timeliness of the protest, then the protest issues are moot. 

Edited October 19, 2023 by joel hoffman

[Oyster]

Typically, the reason that the request for a "brief explanation" becomes important is due to GAO's timeliness rules.  If an FSS vendor fails to request one, then there is no argument that GAO's timeliness rules should be extended beyond the 10 days following the date that the vendor was informed of their non-selection.  If, however, the disappointed vendor first learns of its ground(s) for protest from the brief explanation, then the 10-day window may start on the date of the brief explanation.  That is, unlike procurements conducted under other parts of the FAR, there are no "required" post-award debriefings under FAR Subpart 8.4 ... only a "brief explanation" and only if the disappointed vendor asks for one.  Accordingly, the timeliness rules for the protest (and the CICA stay) are generally shorter under FAR Subpart 8.4 procurements as compared with FAR Part 15 for example.  

Although a "brief explanation" is not a debriefing, and there are no regulatory requirements regarding what an agency must put in a brief explanation, I would still request one if I were a disappointed vendor.  It takes one simple emailed request, and the FAR requires the contracting officer to provide one if requested -- notice the word "shall" in that FAR provision.  You are not asking for a "debriefing," rather you are asking for a "brief explanation."  By not requesting one, you lose potential protest grounds, and you also lose the argument that the protest filing date should be extended based on the brief explanation.  In other words, there's no downside to requesting one.  

See Castro & Company LLC, B-412398, January 29, 2016, Ampcus, Inc., B-415780, March 16, 2018, ITility, L.L.C., B-515274.3, April 2, 2018 and IR Technologies, B-414430 et al., June 6, 2017.

[ax12901]

6 hours ago, Oyster said:

Typically, the reason that the request for a "brief explanation" becomes important is due to GAO's timeliness rules.  If an FSS vendor fails to request one, then there is no argument that GAO's timeliness rules should be extended beyond the 10 days following the date that the vendor was informed of their non-selection.  If, however, the disappointed vendor first learns of its ground(s) for protest from the brief explanation, then the 10-day window may start on the date of the brief explanation.  That is, unlike procurements conducted under other parts of the FAR, there are no "required" post-award debriefings under FAR Subpart 8.4 ... only a "brief explanation" and only if the disappointed vendor asks for one.  Accordingly, the timeliness rules for the protest (and the CICA stay) are generally shorter under FAR Subpart 8.4 procurements as compared with FAR Part 15 for example.  

Although a "brief explanation" is not a debriefing, and there are no regulatory requirements regarding what an agency must put in a brief explanation, I would still request one if I were a disappointed vendor.  It takes one simple emailed request, and the FAR requires the contracting officer to provide one if requested -- notice the word "shall" in that FAR provision.  You are not asking for a "debriefing," rather you are asking for a "brief explanation."  By not requesting one, you lose potential protest grounds, and you also lose the argument that the protest filing date should be extended based on the brief explanation.  In other words, there's no downside to requesting one.  

See Castro & Company LLC, B-412398, January 29, 2016, Ampcus, Inc., B-415780, March 16, 2018, ITility, L.L.C., B-515274.3, April 2, 2018 and IR Technologies, B-414430 et al., June 6, 2017.

Thanks!

It turns out that the CO did give an extensive explanation with the award notice, certainly one that exceeds 'brief explanations' from many COs. Often COs cite FAR 16.505(b)(6)(ii) and say since the award was under $6M, no debrief is required and none will be provided, or alternatively, if under FAR Subpart 8.4, their brief explanation will simply be that you didn't receive the award because you were not technically acceptable, without any further explanation of why it was that you weren't technically acceptable. In contrast, what the Government actually outright called the "debrief letter" in the present case was practically voluble.

So it was perhaps natural to think that this document the CO himself referred to as the "debrief letter" was already the "brief explanation" required by FAR 8.405-2(d), and a further request for yet another "brief explanation" would be pointless and maybe even appear to be some sort of gamesmanship or someone just being vexatious, when the Agency had already provided so extensive a document at time of award. With the so-called "debrief letter" (which was apparently not the "brief explanation", given the Agency counsel's dismissal request), it was already clear that a protest was called for over the unstated evaluation criteria cited, and so the protest was filed within 10 days of the award, as required. Nothing was procedurally wrong, which is why the Agency counsel didn't claim dismissal on procedural grounds, but the "substantive" (?!) grounds of having cited the wrong page limitation in the protest itself (goes without saying the actual offer met the correct page limit or else that would have been the dismissal grounds) and the secondary grounds of having not asked for a debriefing for a FAR Subpart 8.4 solicitation (the Agency counsel did use the term 'debriefing' and not 'brief explanation' which makes me think that he himself was not aware that the solicitation had actually been issued under Subpart 8.4 and not Part 15).

All in all, this is all very strange to me and irregular. And I wonder if the Agency counsel just gave the assignment of writing the dismissal request to his paralegal, except I think even a paralegal would come up with a stronger basis for a dismissal request.

I will be shocked if the GAO dismisses as a result, but if they do, I promise to post here what the GAO counsel says as the rationale for agreeing with the Agency counsel on his dismissal request.

[ax12901]

7 hours ago, joel hoffman said:

If the main argument is independent of the other protest arguments, I often read where the GAO doesn’t dismiss a protest just because other points have no bases for sustaining the protest. They will address the separate, main argument.

Edit: Of course, if there are other grounds for dismissal, such as timeliness of the protest, then the protest issues are moot. 

Well, in this protest, the main argument was that the Agency used unstated evaluation criteria. Various decisions from previous FAR Subpart 8.4-relevant protests were cited. Then almost in passing, and not as a legal argument of any kind, it was mentioned a little further on in the protest that it was a bit unfair to apply such unstated evaluation criteria when the page limitation was only a small 5-pages. That is the point that the Agency counsel latched on. Not on the earlier points about unstated evaluation criteria. Not defending that these criteria in fact were stated or could be reasonably inferred. But that in the very last amendment to the solicitation, the page limitation had been increased and was in fact, no longer 5-pages. Therefore, factual error in the protest. Therefore, basis for summary dismissal.

That and the true fact that there had been no request for a 'debriefing' (Agency counsel's term) for this solicitation under FAR Subpart 8.4. Which as Oyster had said above, might have been relevant if the protest was to be filed more than 10 days after award - not the case here. These two were the grounds for the summary dismissal request.

And as mentioned in response to Oyster's post, if there had been a procedural error such as timeliness of the protest, certainly that would/should have been used as the grounds for dismissal, instead of the page limit and 'debriefing' issues.

[Oyster]

I understand your frustration.  

I don't understand the agency position as you've described it.  Those points do not seem connected to an allegation that the agency evaluators applied unstated evaluation criteria. 

A good (and relatively recent) GAO decision is FreeAlliance.com, LLC, B-419201.3 et al., January 19, 2021.  It sustained a protest of a FAR Subpart 8.4 procurement for applying unstated evaluation criteria.  Perhaps you've already read it, but it's the most recent sustained GAO decision on unstated evaluation criteria for an 8.4 procurement that I'm tracking. 

Good luck. 

[ax12901]

2 hours ago, Oyster said:

I understand your frustration.  

I don't understand the agency position as you've described it.  Those points do not seem connected to an allegation that the agency evaluators applied unstated evaluation criteria. 

A good (and relatively recent) GAO decision is FreeAlliance.com, LLC, B-419201.3 et al., January 19, 2021.  It sustained a protest of a FAR Subpart 8.4 procurement for applying unstated evaluation criteria.  Perhaps you've already read it, but it's the most recent sustained GAO decision on unstated evaluation criteria for an 8.4 procurement that I'm tracking. 

Good luck. 

Thanks. FreeAlliance is indeed cited in the protest. Strangely, or maybe not so strangely, the Agency counsel ignored that and focused on page limitations.

[ax12901]

On 10/19/2023 at 4:33 PM, ax12901 said:

I will be shocked if the GAO dismisses as a result, but if they do, I promise to post here what the GAO counsel says as the rationale for agreeing with the Agency counsel on his dismissal request.

The GAO declined to dismiss:

"At this time, GAO declines to dismiss the protest. The agency's request for dismissal (Dkt. No. 11) is denied. The agency's 5-day letter and report remain due as set forth in the Acknowledgment Package (Dkt. No. 6)."