Decision Released: Protest Denied for DoDEA Grant Program’s Evaluation and Technical Assistance Center (“ETAC”)

File Number: No. 24-351

Background

Safal presents a single claim in its protest: it argues that it was misled when the agency supplied one definition of “strength” in providing the brief explanation on the original solicitation but then applied a different definition in evaluating offers to the amended solicitation.  Had “Safal not been misled by the information conveyed (and not corrected) in the June 2023 debriefing, it would have drafted its revised quotation substantially different[ly].”  (ECF 27 at 20.)   In response, the defendant argues that the DoDEA did not mislead Safal because it never provided Safal with the definition that was allegedly changed between solicitations.  It argues, first, that the plaintiff is mistaken that “the pre-corrective-action definition of ‘strength’ and the post-corrective-action definition of ‘strength’ are meaningfully different.”  (ECF 32 at 17.)  Second, the defendant argues that Safal could not have been misled because “at no point in either the solicitation or in the debriefing did the agency define ‘strength,’” and all of Safal’s inferences about the changed definition stem from its own interpretation of the explanation the agency provided after the initial solicitation, not from anything the agency told Safal …

Discussion

In this post-award bid protest, the plaintiff, Safal Partners LLC (“Safal”), alleges that the Department of Defense Education Activity (“DoDEA” or “agency”) provided it with misleading information in a post-award explanation after an earlier round of this procurement.

In May 2023, Safal submitted an unsuccessful bid to a solicitation to operate the DoDEA Grant Program’s Evaluation and Technical Assistance Center (“ETAC”).  After the DoDEA awarded the contract to the defendant-intervenor, Synergy Enterprises, Inc. (“Synergy”), the agency provided each unsuccessful offeror with a brief explanation (sometimes referred to by the parties as a “debriefing”) explaining the strengths and weaknesses of its proposal.1

For reasons unrelated to the debriefing, Safal filed a bid protest in this court in June 2023 (Safal Partners LLC v. United States, No. 23-933).  The DoDEA agreed to take corrective action, and Safal’s protest was dismissed.  The DoDEA issued a revised solicitation, open only to the six offerors to the initial solicitation, in August 2023.  Four of the six offerors submitted offers to the revised solicitation.

In preparing its revised offer to the revised solicitation, Safal relied on the list of its strengths the DoDEA had provided in its post-award explanation for the initial solicitation.

The agency evaluated the revised proposals and again awarded the contract to Synergy.  As with the initial solicitation, the DoDEA again provided the unsuccessful offerors with brief, individual post-award explanations for why their individual offers did not prevail.  Upon reviewing that explanation, Safal inferred that the agency had narrowed its definition of “strength” between the initial and revised solicitations.

Based on this inference, Safal again protested, but now alleging that the DoDEA misled it by changing the definition.  It alleges that because the agency failed to inform it of this change in definition of what constituted a “strength,” the agency misled Safal into crafting its revised proposal in reliance on an inaccurate definition of strength, which competitively weakened its offer.

Decision

Safal’s challenge fails.  The DoDEA did not provide Safal with a misleading definition of strength, because it never provided Safal with any definition of that term.  The list of strengths in the DoDEA’s explanation of its evaluation of Safal’s offer after the initial solicitation neither conveyed a single, objective definition of strength nor reflected a commitment to use the same, unaltered definition in evaluating offers for the post-corrective action solicitation.  Instead, the definition of strength on which Safal claims to have relied was one of several possible definitions conveyed by the explanation.  The agency had no obligation to intuit that Safal would infer that the DoDEA had employed a particular definition of strength from the initial explanation.  As a result, the agency was under no obligation to inform Safal of the precise definition it would instead use in evaluating proposals to the post-corrective action solicitation.

The plaintiff’s motion for judgment on the administrative record under Rule 52.1 of the Rules of the Court of Federal Claims (“RCFC”) is denied, and the defendant’s and defendant intervenor’s cross-motions for judgment on the administrative record are granted.  The defendant-intervenor’s motion to dismiss pursuant to RCFC 12(b)(6) is denied.

Read more here.

🔊 Listen to Story