GAO decisions/Denied/Decided 8 Nov 2023
Texas Waste Company, LLC
Bias allegations without convincing proof
The procurement
The VA's South Texas Veterans Health Care System bought regulated medical waste removal and disposal services through an RFQ set aside for service-disabled veteran-owned small businesses under FAR parts 12 and 13 (fixed price, 1-year base, four 1-year options). Award went to the lowest-priced quotation in the highest past performance category, as described in FAR 13.106-2(b)(4)(ii). After corrective action on an earlier protest, the VA reevaluated and again chose CLC Services, Inc. (Exceptional past performance, $2,258,543) over Texas Waste (Satisfactory, $1,870,451).
The protest
Texas Waste's affiliate Gruene was the incumbent prime contractor, with CLC as its subcontractor. Texas Waste argued the contracting officer was biased against it because it had escalated a complaint about his handling of an equitable adjustment request on the incumbent contract, calling this a case of "an ousted contracting officer" seeking "petty vengeance." It pointed to an email from the COR to the contracting officer saying Texas Waste's owner "keeps telling me 'if we win the contract these are the changes' and im like ok LOL," and to text messages from the COR.
The agency’s answer
The VA said the contracting officer was never removed; a branch chief simply took over management of the equitable adjustment. The COR's email was an informal comment, not an evaluation, and the COR did not take part in the reevaluation. The ratings differed because Texas Waste offered only one directly relevant reference, rated Satisfactory, while CLC offered two relevant references, one of them rated Exceptional.
What decided it
Bias needs convincing proof that it existed and that it turned into action hurting the protester, and neither was shown.
GAO denied the protest. Government officials are presumed to act in good faith, and a bias claim needs convincing proof, plus a showing that the bias translated into action that unfairly affected the protester's competitive position. The record showed the contracting officer was not removed, the COR's comment was not an evaluation and the COR did not contribute to the reevaluation, and the undated text screenshots lacked authentication and context. The different ratings came from the number and relevance of the references each firm submitted, which the VA weighed reasonably and evenly.
“Where a protester alleges bias, it must not only provide credible evidence clearly demonstrating bias against the protester or in favor of the awardee, but must also show that this bias translated into action that unfairly affected the protester's competitive position.”
GAO, B-421363.2
For the file: A dispute over an equitable adjustment doesn't disqualify a contracting officer, but it puts the file under a microscope: tie every rating to the references submitted and keep people making offhand comments out of the evaluation.
Authorities: FAR 13.106-2(b)(4)(ii). Read the decision at GAO →
Facts are condensed from the published decision and the quote is verbatim; the takeaway is ours. Where GAO decided several grounds, only this one is described.
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