Decided: May 10, 2022
Agency: Department of Homeland Security
Disposition: Protest Sustained
This case is another recent example of GAO sustaining an offeror’s protest, despite being highly deferential to agency evaluations. Here, the protestor was able to demonstrate prejudice from the agency’s errors in price evaluation and the incorrect use of a lowest-priced technically acceptable basis. GAO ultimately sustained the protestor’s challenges, because the record established that the agency evaluated proposals in a manner inconsistent with the solicitation and failed to qualitatively compare proposals. If you were involved in a bid and feel the agency similarly evaluated in a manner inconsistent with the solicitation, you may have similar grounds for a protest.
Companies should thoroughly evaluate the potential for success with any protest situation. The time, expense, and negative consequences associated with challenging your Government customer warrants a strategic evaluation between your executive leadership, capture, proposal, and legal teams. General Counsel has the experience and drive to assist clients with assessing award decisions, developing legal courses of action, filing either as an unsuccessful bid protestor or the awardee intervenor, litigating the protest, and developing post-decision lessons learned for more effective future business development practices.
Summary of Facts
AT&T Mobility LLC (AT&T) protests the issuance of a federal supply schedule (FSS) order to Cellco Partnership d/b/a Verizon Wireless (Verizon), under RFP No. 70US0921R70090027, issued by the Department of Homeland Security, United States Secret Service for cellular communications services and equipment. The solicitation was issued to FSS contract holders on March 19, 2021 and contemplated issuance of a single, hybrid fixed-price and time-and-materials order for a 1-year base period, which included a 6-month transition, and four 1-year option periods.
The solicitation initially established that award would be made on a best-value tradeoff basis considering price and 4 non-price factors. However, The agency revised the solicitation to remove the pass/fail matrix evaluation factor, to fold consideration of an offeror’s ability to meet the statement of work’s core requirements into the evaluation under the technical factor, and to add weights to the non-price evaluation factors. The final version of the solicitation established that the source selection would be made on a best-value tradeoff basis considering price and 3 weighted non-price factors.
Entering into “communication exchanges” the evaluators assigned the final proposals of both AT&T and Verizon ratings of satisfactory under each of the non-price factors, as well as “overall” ratings of satisfactory. The agency calculated AT&T’s total evaluated price to be $19,998,857 and Verizon’s total evaluated price to be $17,928,540. The contracting officer, who served as the source selection official (SSO), reviewed the evaluators’ findings and “did not see any discriminators in AT&T’s proposal which would be worth the price premium” and accepted “the lowest priced proposal submitted by Verizon as the overall best value for the Government.” AT&T filed this protest.
Basis of Protest
AT&T asserts the agency improperly converted the source selection into a lowest-priced, technically acceptable procurement and the evaluation was inconsistent with the solicitation.
Source Selection Decision
GAO stated that while “an agency is not obligated to extensively document every consideration made in its source selection decision, it is required to adequately explain and document the basis for its determination” or it bears the risk that GAO may be unable to determine whether the decision was proper. GAO stressed that agencies may not base their selection decisions on adjectival ratings alone, as such ratings serve only as guides to intelligent decision-making. Selection officials must explain the basis for finding that proposals are technically equivalent.
If a selection official reasonably regards proposals as being essentially equivalent technically, then price properly may become the determining factor in making award, and it is not necessary to perform a price/technical tradeoff. However, GAO noted that first the agency must reasonably determine that the two proposals are technically equivalent based on a documented qualitative assessment of proposals.
GAO concluded that the contemporaneous record “does not demonstrate that the SSO meaningfully looked behind the adjectival ratings to consider the qualitative value of the proposals in determining that they were technically equivalent.” GAO further explained that “agencies cannot announce in a solicitation an evaluation scheme that provides for a tradeoff analysis with the technical factors being considered more important than price and then disregard the stated evaluation scheme and make award on a lowest-priced, technically acceptable basis.” Thus, GAO sustained AT&T’s challenge to the source selection decision.
GAO explained that “competitive prejudice is an essential element of every viable protest.” GAO will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions and that, but for the agency’s actions, it would have had a substantial chance of receiving the award.
GAO noted that “had the agency’s improper price evaluation been the only error reflected in the record, it may have been possible to conclude that the protester failed to demonstrate how it was competitively prejudiced,” but the record also reflects errors in the agency’s source selection decision. GAO explained that the record indicates that, “in essence, the agency conducted the procurement on a lowest-priced, technically acceptable basis, contrary to the terms of solicitation.” Thus, GAO held it couldn’t conclude that, had the agency evaluated proposals consistent with the terms of the solicitation and performed a proper tradeoff analysis, that the SSO would have made the same selection decision. GAO indicated that “doubts regarding prejudice” are resolved in favor of a protester. Thus, GAO sustained AT&T’s challenge to the agency’s price evaluation.
Our Government Contracts Practice Group has extensive experience in government contract law, helping clients solve their government contract problems relating to the award or performance of a federal government contract, including bid protests, contract claims, small business concerns, and teaming and subcontractor relations. If you need more guidance or information, contact Craig Lawless, Senior Counsel in our Government Contracts practice area at General Counsel, P.C., 703-266-1865.