Last Friday, the Government Accountability Office (“GAO”) released a public version of Delfasco, LLC, B-409514.3 (March 2, 2015), a decision noteworthy because of how the GAO dealt with an agency’s post hoc reevaluation of proposals.  The protestor, Delfasco, LLC (“Delfasco”), had an incumbent contract to sell dummy practice bombs to the U.S. Army, and it protested the award of a follow-on contract to GTI Systems, Inc. (“GTI”), a competitor.

While Delfasco’s protest was pending before the GAO, the Army reevaluated the offerors’ proposals, and it found errors in its evaluation.  The Army increased Delfasco’s past performance rating, and it eliminated three strengths that had been assigned to GTI’s technical proposal.  Nonetheless, the Army concluded that these errors would not have altered its award decision.  In its final brief to the GAO, the Army explained this reevaluation.  The Army asserted that Delfasco had not been prejudiced, and it asked the GAO to deny Delfasco’s protest.

The Army’s mid-protest reevaluation influenced the GAO’s decision, but not in the way that the Army had intended.  The GAO credited the reevaluation insofar as it gave credence to Delfasco’s protest, finding that the Army’s reevaluation “effectively concede[d] that [the Army’s] prior evaluation . . . was erroneous.”  However, the GAO rejected the corresponding contention that Delfasco had not been prejudiced.  According to the GAO, this post hoc assessment by the Army, made in the heat of litigation, deserved little weight.  Finding instead sufficient evidence of prejudice, the GAO sustained Delfasco’s protest.

The Army likely regrets briefing the GAO on its post hoc reevaluation.  Perhaps it had been reluctant to delay its procurement by taking corrective action.  Perhaps now, if a similar situation arose, it would take corrective action.  Whatever the case, the lesson for protestors and protest counsel in such situations is to analyze whether and how such post hoc evaluations can redound to their benefit.

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Photo of Scott A. Freling Scott A. Freling

Scott is sought after for his regulatory expertise and his ability to apply that knowledge to the transactional environment. Scott has deep experience leading classified and unclassified due diligence reviews of government contractors, negotiating transaction documents, and assisting with integration and other post-closing…

Scott is sought after for his regulatory expertise and his ability to apply that knowledge to the transactional environment. Scott has deep experience leading classified and unclassified due diligence reviews of government contractors, negotiating transaction documents, and assisting with integration and other post-closing activities. He has been the lead government contracts lawyer in dozens of M&A deals, with a combined value of more than $76 billion. This has included Advent’s acquisition of Maxar Technologies for $6.4 billion, Aptiv’s acquisition of Wind River for $3.5 billion, Veritas Capital’s sale of Alion Science and Technology to Huntington Ingalls for $1.65 billion, and Peraton’s acquisition of Perspecta for $7.1 billion.

Scott also represents contractors at all stages of the procurement process and in their dealings with federal, state, and local government customers. He handles a wide range of government contracts matters, including compliance counseling, claims, disputes, audits, and investigations. In addition, Scott counsels clients on risk mitigation strategies, including obtaining SAFETY Act liability protection for anti-terrorism technologies.

Scott has been recognized by Law360 as a MVP in government contracts. He is a past co-chair of the Mergers and Acquisitions Committee of the ABA’s Public Contract Law Section.