Government Contracts Monitor

Don’t Let Your Award Be Protested Without You – Intervene and Participate

September 8, 2014

A recent protest saga began when Motorola Solutions, Inc. (Motorola) challenged the U.S. Army’s award of a land mobile radio contract to Harris Corporation (Harris). Motorola claimed that Harris did not propose a radio approved by the Michigan Public Safety Communications System (MPSCS), a requirement of the Army’s Request for Proposals (RFP). Harris did not intervene in the protest. The General Accountability Office (GAO) sustained Motorola’s protest, holding that since the RFP required that any proposed radio be approved by or before the time of proposal submission, the Army should have rejected Harris’ proposal as technically unacceptable. Based upon GAO’s decision, the Army took the corrective action of reevaluating proposals, informed Harris that, upon reevaluation, its proposal had been found to be technically unacceptable, and then awarded the contract to Motorola. Harris’ protest followed, but too late. Harris Corporation, B-409148.3, B-409148.4, July 30, 2014.

After losing its award as a result of Motorola’s protest, Harris, in its follow-on protest, argued that (i) the RFP overstated the Army’s needs, (ii) the Army improperly failed to engage in discussions with Harris during the reevaluation process, and (iii) the Army treated Harris and Motorola “unequally in its reevaluation of proposals.” GAO disagreed.

First, GAO found untimely Harris’ assertion that an MPSCS-approved radio exceeded the Army’s requirements: challenges to the terms of a solicitation must be filed before the deadline for submitting proposals. 4 C.F.R. § 21.2(a)(1).

GAO also rejected as untimely Harris’ challenge to the Army’s decision to cancel discussions planned as part of the reevaluation process. Here again, the Bid Protest Regulations dictate a deadline that Harris missed: allegations challenging an agency’s adverse action must be filed within 10 days of when the protester knows or should have known of its basis to protest. 4 C.F.R. § 21.2(a)(2). The Army informed Harris that is was cancelling discussions 13 days before Harris filed its protest.

Finally, GAO ruled that Harris’ allegations of inequalities in the Army’s reevaluation of proposals were entirely speculative. In this regard, and of particular interest to our readers, GAO stated that while “Harris was not required to intervene in the earlier protest, if Harris had participated, it would have had an opportunity to review the Motorola proposal as part of the record, and could have advanced any and all challenges to the acceptability of the Motorola proposal at that time.” Having failed to intervene and participate at the earlier stage, Harris was not prepared, in its own protest, to “include a[ny] detailed statement of the legal and factual grounds for protest.” And “speculation, without more, does not meet the requirements” of GAO’s Bid Protest Regulations. 4 C.F.R. § (c)(4).

The lesson: Don’t sit at the sideline. Protect yourself and your award, and arm yourself for possible subsequent protest activity, by intervening whenever your award is protested by a competitor.