• R.D. Lieberman,Consultant

Protester's Failure to Rebut or Substantively Comment

What happens when a protester submits a protest to the Government Accountability Office (“GAO”), the agency responds in its agency report with a detailed response to every assertion, but the protester fails to rebut or substantively address the agency’s arguments in its comments on the agency report? The simple answer is “protest denied.” See, e.g., Oakland Consulting Group, Inc., B-412054.2, September 19, 2016.

Oakland Consulting protested its exclusion from the competitive range by the Defense Logistics Agency (“DLA”) on a procurement for information technology (“IT”) services. The DLA found one weakness, three significant weaknesses and two deficiencies which made Oakland Consulting’s proposal technically unacceptable. Oakland Consulting challenged the evaluation of all six areas in its protest.

Following its usual procedure, GAO asked the agency to provide comments in an agency report on the protest. DLA’s agency report addressed every allegation in detail. Again, following its usual procedure, the GAO gave Oakland Consulting the regular time period to comment in writing on the agency report. However, in response to the agency report, Oakland Consulting “simply repeated its earlier protest grounds and did not meaningfully address or rebut the merits of the agency’s statements and explanations.”

Under those circumstances (detailed agency response to protest but no rebuttal or substantive comments in the protester’s response), the GAO has no basis to conclude that the agency’s position is unreasonable or improper. The mere fact that the protester continues to disagree with the agency’s evaluation—but offers no rebuttal or explanation as to why the evaluation was wrong—is insufficient to show that the agency evaluation was unreasonable.

Comment: If you protest an agency procurement and receive a detailed agency report inviting your comments, do not just repeat to the GAO what was in your protest. Address every point raised in the agency report, demonstrating why it is factually or legally insufficient, or otherwise an unreasonable agency position. If you cannot rebut anything in the agency report, you should consider withdrawing your protest.

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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