In February 2024, the Government Accountability Office (“GAO”) published 26 decisions, five of which were sustained. There was also one denial of costs and one denied request for reconsideration. Below is a summary of February’s notable decisions and what potential protesters can learn from them.

Sustained Protests

In Kauffman and Associates, Inc.,[1] the GAO sustained multiple protest grounds to include a challenge regarding a latent ambiguity in the solicitation, a protest ground we do not see succeed all that often. This protest was the protester’s second challenge to the Department of Health and Human Services, Centers for Medicare and Medicaid Services’ award of a Federal Supply Schedule order for in-person and virtual training services after CMS took voluntary corrective action, reevaluated quotations, and selected the same awardee. The protest was sustained on four grounds:

1. The solicitation contained a latent ambiguity regarding what information vendors were required to submit in response to the statement that the evaluation would “consider each [vendor’s] documentation of the interrelationship between this effort and others already out in the field.” The GAO found the agency and protester both reasonably interpreted the solicitation’s technical approach language; the agency evaluated prior experience while the protester submitted information that was forward-looking.
2. The agency did not evaluate quotations on an equal basis. Both the protester’s and awardee’s quotations did not outline a plan to track and deploy continued education units. But, the agency only assessed a significant weakness only to the protester’s quotation.
3. The agency’s technical evaluation was unreasonable and inconsistent with the terms of the solicitation regarding the personnel, management plan, and past performance factors. Notwithstanding the fact the awardee’s quotation did not include information required by the solicitation, the agency found that the awardee met the solicitation’s requirements. This was unreasonable and not supported by the record.
4. The agency unreasonably determined the awardee’s price was fair and reasonable because the awardee proposed one labor rate that was above its GSA Federal Supply Schedule price. While a Schedule holder may offer discounts to its FSS prices, it cannot propose any higher prices because the GSA has not determined those prices to be fair and reasonable. As a result, it is improper for an agency to issue an order with higher non-FSS pricing under an FSS acquisition. 

This decision shows that even though latent ambiguities are often deemed untimely challenges to the terms of the solicitation or unambiguous, protesters can be reassured that latent ambiguity challenges to a solicitation post-award still have a fighting chance at GAO. Moreover, the decision demonstrates how important it is to carefully scrutinize the administrative record and compare it against the solicitation’s requirements where the GAO appears to be taking a closer look at whether agencies clearly follow the stated evaluated scheme.

In Deloitte Consulting, LLP; Softrams, LLC,[2] the GAO sustained protests challenging the award of eight contracts by the Library of Congress for agile system development support services on five grounds:

1. The agency treated substantively identical proposal features differently resulting in disparate evaluations of the proposals. For example, the agency assigned strengths for proposal features to some offerors but did not assign similar strengths to a protester’s proposal or explain why the protester’s proposal did not warrant the strength. The agency conceded disparate treatment of one protester but argued there was no competitive prejudice. The GAO disagreed, finding that because the evaluation was “extremely close” one additional strength could have been meaningful.
2. The agency should have raised in discussions one awardee’s exception to a material data rights requirement because it would have rendered the proposal unawardable. As a result of the agency’s lack of meaningful discussions, the GAO recommended that the agency reopen discussions.
3. The agency did not use the price evaluation methodology set forth in the solicitation. While the RFP provided the agency would calculate price based on an estimate of hours per labor category, instead the agency used a judgmental selection of task orders that covered less than a quarter of the total labor categories. This was inconsistent with the terms of the solicitation and therefore unreasonable.
4. The agency’s past performance evaluation was inadequately documented. While the agency concluded the offerors were equal, there was no record support for this conclusion – in fact the record suggested there were meaningful differences.
5. Finally, GAO sustained on the basis that the best value tradeoffs were unreasonable where they were based on a flawed evaluations, for the reasons discussed above, and the tradeoff did not reasonably establish a ranking and did not adequately document the tradeoff the agency performed for either protester.

This decision demonstrates some key issues to consider before filing a bid protest and when reviewing the agency report. One key takeaway is that it is important to ensure the agency’s evaluation methodology aligns with the evaluation methodology set forth in the solicitation. An agency must inform offerors of the evaluation criteria and therefore cannot decide to evaluate offerors differently after receiving proposals, as was the case in this protest with the agency’s price evaluation methodology. And, it is not enough for the agency to rate proposals, the agency has to adequately document its conclusions.

In Conti Federal Services, LLC,[3] the GAO sustained a protest challenging the U.S. Army Corps of Engineers’ contract award for environmental remediation services at a Superfund contamination site. The GAO found the agency’s cost realism evaluation was flawed. Specifically, the agency’s most probable cost calculation upwardly adjusted the protester’s quality control manager and site safety and health officer rates using protester’s proposed superintendent rates, even though the superintendent requires higher qualifications and more duties than the other positions. The contemporaneous record did not explain this adjustment.

In response to the protest, the agency presented an “updated” most probable cost calculation based on Salary.com that reduced the upward adjustment by more than $65,000. The GAO rejected this updated calculation as a post-hoc rationalization and found that it essentially conceded the agency over-adjusted the protester’s costs. Similarly, the agency upwardly adjusted the protester’s fuel costs, and “updated” the adjusted fuel costs in response to the protest. These adjustments were likewise unsupported by the record, as well as based on inconsistent assumptions. Neither the contemporaneous record nor the post-hoc rationalization explained the differing assumptions. The upward adjustments were arbitrary, based on inconsistent assumptions, and the cost evaluation was unreasonable. Based on issues with the cost evaluation, the GAO also sustained the protester’s challenge to the best-value determination. The source selection decision was, in part, based on the protester’s same-rated proposal having a higher price – but that price was based on the agency’s flawed upward cost adjustments. As a result the source selection decision was unreasonable.

This decision exemplifies the GAO’s skepticism when the agency, in response to a protest, makes post-hoc rationalizations. It also shows that when a protester alleges errors in the agency’s evaluation, it is important to consider whether those errors would have also impacted the best value determination.

In LOGMET, LLC,[4]the GAO sustained a protest challenging the GSA Federal Acquisition Service’s award of a Federal Supply Schedule order for organizational level aircraft maintenance services for the U.S. Marine Corps. The GAO found that there was no indication in the record that GSA considered whether the labor categories in the Performance Work Statement were within the scope of the labor categories contained in the awardee’s FSS contract. It was not enough that the agency acknowledged that the PWS labor categories were “cross walked” to the FSS contract labor categories. Lacking a sufficient contemporaneous record or a post-protest explanation by the agency, the GAO sustained the protest. Notably, in sustaining the protest, the GAO specified that while the FSS labor categories had minimum years of experience requirements that were lower than the PWS, that alone was not a reason to sustain the protest: an agency may seek assurances from a vendor that it will meet the stated experience requirements when using FSS labor categories with lower minimum experience levels than required by the solicitation. This protest serves as a good reminder to carefully analyze whether proposed FSS labor categories actually align with the PWS and whether that is adequately documented in the record.

In Global Patent Solutions, LLC,[5] the GAO sustained a protest challenging the award of an indefinite-delivery, indefinite quantity contract by the Department of Commerce, United States Patent and Trademark Office (“USPTO”) for professional services to assist the USPTO in reviewing international patent applications. First, the GAO addressed the standard of review. While the RFP was issued under the USPTO’s unique alternative competition method which is exempt from the substantive requirements of the federal procurement statutes in United States Code Title 41 and their implementing provisions in the Federal Acquisition Regulation, the GAO still has bid protest jurisdiction under the Competition in Contracting Act. The GAO rejected the USPTO’s contention that it was exempt from the requirement that it must award a contract based solely on factors specified in the solicitation because that would allow the USPTO to treat competitors “without regard to principles of fundamental fairness.” Instead the GAO would apply the same standard it always uses – it would review the record to determine whether the agency’s evaluation was reasonable and consistent with the stated evaluation criteria and with applicable procurement statutes and regulations. The GAO sustained the protest finding the agency’s evaluation of the awardee’s small business participation plan was unreasonable where the record showed neither the awardee’s teaming agreements nor its subcontracting plan complied with the solicitation’s requirements yet the agency found the flaws were “mostly procedural and not substantive.”

Like many other February sustains, this decision reiterates the value in closely examining the awardee’s proposal against the solicitation’s requirements. If the agency’s evaluation deviated from the solicitation’s requirements, then it is likely the GAO will find the evaluation was unreasonable.

Conclusion

While this month’s decisions show the GAO sustains protests on a variety of grounds, protesters have found repeated success due to agencies’ failure to follow the stated evaluation schemes, inadequate agency documentation and the adequacy of agency price and cost evaluations. But the GAO’s finding of a latent ambiguity is a reminder that even often-unsuccessful grounds may have merit based on the facts of a particular case.

FOOTNOTES

[1] Kauffman and Associates, Inc., B-421917.2, B-421917.3, Jan. 29, 2024.

[2] Deloitte Consulting, LLP; Softrams, LLC, B-421801.2, et al., Jan. 30, 2024. Sheppard Mullin attorneys Keith Szeliga, Katie Calogero, Daniel Alvarado, and Lillia Damalouji represented Deloitte Consulting, LLP.

[3] Conti Federal Services, LLC, B-422162, et al., Feb. 1, 2024.

[4] LOGMET LLC, B-422200, B-422200.2, Feb. 21, 2024.

[5] Global Patent Solutions, LLC, B-421602.2, B-421602.3, Feb. 23, 2024.

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