GAO sustains protest because the agency failed to respond to a protest allegation and did not recognize discriminators during the evaluation.

TAKEAWAYS

• A recent GAO decision provides a rare example of GAO sustaining a protest when the agency failed to substantively respond to a protest ground.
• GAO also found that the agency’s evaluation was unreasonable where it failed to identify and consider differences, or “discriminators,” between proposals in a best value procurement.
• GAO’s decision makes clear that agencies must not only reasonably evaluate and document differences in offerors’ proposals but must also substantively address the protest grounds of disappointed offerors.

On May 3, 2024, the Government Accountability Office (GAO) sustained a bid protest filed by ITility, LLC, which challenged the Department of Homeland Security’s decision to award a task order for financial and program management support services to Integrated Finance and Accounting Solutions, LLC in a best value procurement. The protester alleged that the agency’s evaluation of technical proposals was unreasonable in several respects and that the agency conducted a flawed best-value tradeoff analysis. In a rare decision, GAO sustained the protest because the agency failed to substantively address several allegations raised in the protest. GAO also concluded that the agency failed to reasonably evaluate proposals due to unrecognized discriminators in the protester’s proposal.

The protester asserted that the awardee’s proposal was unreasonably credited a strength for offering to use an auditing tool that was not required by the solicitation for a particular type of testing, even though the awardee’s proposal never committed to using the tool for such testing. It also alleged that the agency misunderstood the awardee’s proposed use of the tool. GAO sustained this protest ground finding that the agency failed to substantively respond to the protester’s arguments. GAO stated, “[w]here an agency does not respond to a protest allegation and does not contest the merits of a protester’s arguments, we view the agency as having effectively conceded that the arguments have merit.” GAO last sustained a protest ground on this basis alone in 2012, when it sustained two such protests: Verizon Wireless and TriCenturion, Inc.; SafeGuard Services, LLC.

The protester also asserted that the agency failed to recognize and consider discriminators in its proposal because, unlike the awardee who only submitted one accountant as a key person, the protester submitted two accountants as key personnel as preferred by the terms of the solicitation. GAO sustained the protest and found that the agency failed to consider the discriminator in the evaluation of key personnel since the contemporaneous record did not credit or distinguish that ITility proposed two accountants instead of one. GAO stated that “[w]here a solicitation indicates that the agency will evaluate the ‘extent’ to which a proposal meets a particular requirement, offerors can reasonably expect that a proposal exceeding the agency’s minimum requirements will garner a more favorable evaluation than one that merely meets the requirements.” GAO also found that the agency’s justification for why the awardee and protester were given the same rating of “High Confidence” in this factor was unreasonable because it relied on post-protest rationalizations not supported by the contemporaneous record.

The ITility decision reaffirms that GAO will sustain a protest where an agency fails to substantively respond to an allegation raised in a bid protest. It also confirms that an agency must consider and document any discriminators in an offeror’s proposal that distinguish it from others that are similarly ranked.

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