GAO Sustains Protest Due to Unreasonable Agency Evaluation

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The Government Accountability Office (“GAO”) recently sustained a protest in the matter of TekSynap Corporation for the agency’s failure to reasonably evaluate proposals.  While the decision is not a novel area of law, it does provide contractors insight into what facts can be sufficient for the GAO to find that an agency conducted an unreasonable evaluation. The GAO has repeatedly stated that its role is not to reevaluate proposals but instead is to review the record to determine whether the evaluation and decision were reasonable and consistent with the solicitation and applicable procurement laws.

The solicitation at issue in TekSynap contemplated the award of an indefinite-delivery, indefinite-quantity contract for a spectrum of IT services on a best value determination.  In its protest, TekSynap raised multiple issues; however, the GAO’s analysis was mostly limited to the agency’s evaluation of the management plan subfactor of both TekSynap, the protester, and Chenega Agile Real-Time Solutions, LLC (“CARS”), the awardee.  The solicitation established Technical/Management factor as the most important of the non-price factors and stated that the non-price factors when combined were significantly more important than price.  Under the Technical/Management factor were three subfactors: management plan, technical approach, and transition plan in descending order of importance. The management plan subfactor was comprised of three elements, management approach, staffing plan, and key personnel. Thus, any improper evaluation on the management plan subfactor would impact the resulting best-value determination.

The GAO first discussed the agency’s evaluation of the awardee, focusing on the agency’s decision to assign only a slight weakness for the personnel proposed by CARS, because the resume it submitted for the operations manager position failed to meet one of the solicitation’s mandatory key personnel requirements.  The GAO explained that since the solicitation permitted discretionary rejection on such a basis, the failure to meet the requirement did not require the disqualification of the proposal.  However, the GAO did find that the assignment of only a “slight weakness” for this element of the subfactor was unreasonable, which cast doubt on the agency’s “outstanding” rating for CARS’ management plan subfactor, thus also discrediting the “outstanding” rating given to the overall proposal.

The GAO then moved onto the agency’s evaluation of the protester.  The agency assigned a “moderate strength” to TekSynap’s management approach under the management subfactor, despite the agency’s qualitative analysis “positively describ[ing] numerous merits” of the proposal with language that closely aligned to the solicitation’s criteria for the “significant strength” rating.  The agency attempted to characterize this language as an error; however, the GAO found the post-protest explanation to be unpersuasive as the record contained no evidence to support the agency’s claim.  Like the inappropriate evaluation of CARS, the GAO found that the agency’s underrating of TekSynap’s management approach possibly devalued TekSynap’s management subfactor, for which it received a “good” rating, conceivably impacting the overall proposal rating.

On the management plan subfactor, both parties initially received two significant strengths and one slight weakness, with some of the intermediate ratings varying.  On this record, the GAO determined that TekSynap suffered prejudiced, giving it reason to sustain the protest.  The GAO further determined that due to the improper evaluations, the agency’s decision to not hold discussions with TekSynap regarding a pricing issue was also unreasonable.

This case demonstrates the importance of a debriefing after receiving notice as an unsuccessful offeror.  Here it was the nuance of the agency’s evaluation that gave the GAO reason to sustain the protest.  Disappointed offerors should prepare detailed questions for the agency as part of the initial debriefing or, for DoD procurements, as part of their enhanced debriefing rights following the initial written or oral debriefing.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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