060110-N-3019M-001In a decision publicly released June 5, 2017, the U.S. Government Accountability Office (GAO) ruled in favor of Oles Morrison Rinker & Baker LLP’s (“Oles Morrison”) client, TOTE Services, Inc. (TOTE), in a bid protest challenging the U.S. Navy – Military Sealift Command’s (MSC) award of $32 million O/M contract for the Sea-Based X-Band Radar (SBX-1).  The SBX-1 is the floating, self-propelled, mobile radar system used by the U.S. Missile Defense Agency to detect and track incoming ICBMs fired at the United States.

GAO sustained TOTE’s protest, holding that MSC had committed multiple errors in the evaluation of the awardee’s past performance.  Namely, MSC improperly credited the awardee for relevant performance without considering the quality of that performance, and credited the awardee for positive performance without considering its relevance.  GAO also held that MSC lacked a reasonable basis to conclude that the awardee’s singular past performance contract of its own was “very relevant.”

GAO found that in light of “the pervasiveness” of the errors in the evaluation (at least 42 of the 76 past performance ratings assigned to the awardee were in error), there was a potential of prejudice to TOTE. In finding prejudice, GAO pointed out that TOTE had received the highest possible rating on the past performance factor, and had received “very good” or “excellent” ratings for its experience on the incumbent contract, which MSC judged to be “very relevant” for each of the 10 sub-elements of the past performance factor.

GAO recommended that MSC conduct a new evaluation, and reimburse TOTE’s costs of filing and pursuing the protest, including reasonable attorneys’ fees.

For additional coverage on this protest, check out Law360, PubkLaw, and Inside Defense.

Oles Morrison has one of the leading bid protest practices in the nation and is one of only six law firms nationwide —and the only government contract practice in the Pacific Northwest— to have at least four protest sustains at GAO, in addition to multiple protest victories at the U.S. Court of Federal Claims, since 2013.

In this protest, the Oles Morrison’s government contracts team was led by Adam Lasky and Howard Roth, along with Jim Nagle and Daniel Radthorne.