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Posted on Thursday, March 15, 2018

Protestor’s Lack of Substantive Response Sinks Protest

GAO recently dismissed an unsuccessful bidder’s protest, finding that the protestor had effectively abandoned its protest when it failed to provide a substantive response to the agency’s report.

Yang Enterprises, Inc. protested the award of an Air Force contract for launch operations and infrastructure support at Cape Canaveral, Florida to ASRC Communications, Ltd. Yang argued that the Air Force failed to perform an adequate cost realism evaluation. The Air Force responded with a detailed agency report, which included documentation of the agency’s cost realism evaluation. The Air Force also argued that Yang was not an interested party and that its protest was factually and legally insufficient.

Yang’s response to the agency report consisted of a single three-sentence paragraph. The crux of its response was that the agency report “do[es] not contain sufficient analysis of the relation of the technical portions of ASCR’s proposal to the cost analysis to justify the conclusion that the cost realism analysis performed by the Air Force was thorough, complete and accurate.”

In response, the Air Force asked GAO to dismiss Yang’s protest as abandoned, given the brevity of its comments. Yang responded to this request, stating in part “it is Protestor’s positon that the arguments in the Protest are still valid and are not satisfied by the information provided in the Agency Report.”

GAO dismissed the protest as abandoned, finding that Yang failed to provide a substantive response to the agency’s arguments. It is insufficient for a protestor to merely refer to the arguments raised in its initial protest filing, without providing any meaningful response to the agency’s arguments on the merits.

GAO also noted that Yang completely failed to address the Air Force’s procedural arguments – that Yang was not an interested party and that its protest was factually and legally insufficient.

This decision is a reminder that protestors must always provide a substantive response to the agency report. If the protestor believes that the agency’s response is lacking in some way – whether in its legal argument or by failing to provide adequate documentation – the protestor must explain its reasoning rather than just make a conclusory statement. Failure to provide a substantive response will result in GAO’s dismissal of the protest as abandoned.

Yang Enterprises, Inc., B-415923 (March 12, 2018).

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, legal updates, events, and more. This post was published in the March 2018 Monthly Insights newsletter. To sign up for Monthly Insights, please click here.

Stephanie Wilson is a Partner at Berenzweig Leonard, LLP. She and Terry O’Connor lead the firm’s Government Contracts practice. Stephanie can be reached at swilson@berenzweiglaw.com.