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60-Second Sustains: BrightPoint, LLC

Elizabeth N. Jochum and David L. Bodner ●

Protest of: BrightPoint, LLC
B-423392, B-423392.2, B-423392.3

BrightPoint raised numerous challenges to the Department of Agriculture’s evaluation and award of a task order for information technology services.
The Government Accountability Office (“GAO”) sustained one protest ground: that the discriminators identified by the Agency to justify its award decision were based on the awardee’s experience with work unrelated to the anticipated work scope and also possessed and demonstrated by Brightpoint.
In response to this protest ground, the Agency argued “in general terms” that its evaluation was reasonable and equal.
But GAO noted that the Agency did not demonstrate a connection between the Solicitation’s requirements and the positive findings it gave to the awardee’s experience.
The Agency also did not “meaningfully respond” to Brightpoint’s allegations of unequal treatment, stating only that it treated offerors equally.
GAO determined that, but for the discriminators identified in favor of the awardee, Brightpoint might have been selected for award, even at a small price premium.
GAO recommended the Agency reevaluate the prior experience volumes and make a new source selection decision.

60-Second Sustains: TISTA Science and Technology Corporation

Elizabeth N. Jochum and David L. Bodner ●

Protest of: TISTA Science and Technology Corporation
B-422891.2; .3; .4

TISTA challenged the issuance of a task order by the National Institutes of Health to Tantus Technologies, alleging the agency engaged in unequal treatment of the offerors.
The Agency assessed a strength to the awardee for proposing to maintain a “warm bench” of candidates to meet potential surge staffing needs. On the other hand, it assessed a weakness to TISTA for proposing to maintain bench strength with a pool of pre-vetted candidates.
The Agency argued there was a distinction in the proposals in that the awardee’s “warm bench” was made up exclusively of existing employees, while TISTA’s would need to hire surge candidates.
The Government Accountability Office (“GAO”) rejected the Agency’s argument, finding that both quotations provided for surge staffing with a mix of existing and yet-to-be-hired employees, and sustained the protester’s allegation of disparate treatment.
GAO similarly found unequal treatment in the Agency’s decision to assign a strength to the awardee for its use of a “master schedule,” when it did not assign a strength to the protester for proposing use of a “master tracker.”

60-Second Sustains: The Mission Essential Group

Elizabeth N. Jochum and David L. Bodner ●

The Mission Essential Group
B-422698.2

Mission Essential challenged a task order solicitation issued by the Air Force, alleging the lowest price, technically acceptable (“LPTA”) evaluation scheme violated DFARS 215.101-2-70.
The DFARS provision establishes eight criteria, each of which must be met in order for a solicitation to employ an LPTA methodology.
It also requires that agencies “avoid, to the maximum extent practicable,” the use of LPTA procedures for procurements of “knowledge-based professional services.”
Mission Essential alleged the Air Force failed to meet at least three of the eight criteria allowing for LPTA and that LPTA procedures must be avoided given the type of services sought.
GAO sustained the protest, recommending the Air Force revise the solicitation to comply with DFARS 215.101-2-70 and request revised proposals.

Fiscal Year 2024 GAO Protest Statistics: Course Correction from Fiscal Year 2023 Shows Continued Slow Decline in GAO Protests

Luke W. Meier and Shane M. Hannon ●

The Government Accountability Office (“GAO”) released its Annual Report to Congress for Fiscal Year 2024 (B-158766), summarizing bid protest activity during the 2024 fiscal year. The FY24 bid protest statistics reflect a continuation of recent trends, and course correction after the FY23 statistics were skewed by the 100+ protests challenging the Department of Health and Human Services’ government-wide acquisition contract, the Chief Information Officer-Solutions and Partners 4 (“CIO-SP4”).

Overall, the number of protests is fairly steady, the effectiveness rate remains high (over 50 percent), and hearings are increasingly rare (just one in the last year).

60-Second Sustains: Sparksoft Corporation

Elizabeth N. Jochum ●

Sparksoft Corporation
B-422440;.2

The awardee’s Systems Security Officer (“SSO”) was awarded a positive finding for holding a certified information systems security professional (“CISSP”) certification. The protester alleged that their SSO held the same certification, as demonstrated in the proposal, but was not awarded an equal positive finding.
The agency admitted the unequal treatment was an evaluation error but argued Sparksoft was not prejudiced by the “oversight.”
GAO disagreed, noting that the contemporaneous record showed that when the source selection authority (“SSA”) compared the awardee’s proposal to Sparksoft, the SSA highlighted the awardee’s SSO CISSP certificate as a discriminator between the two proposals.
When performing the best-value tradeoff, the SSA acknowledged the price differential between the two proposals was “significant” but concluded that “distinguishing positive features” in the awardee’s proposal justified this premium.
GAO found that it was not clear the SSA would have come to the same conclusion if not for the unequal treatment of the offerors’ SSOs.
Accordingly, GAO sustained the protest and recommended the agency reevaluate both offerors under the key personnel factor and perform a new best value tradeoff.

60-Second Sustains: ITility, LLC

Elizabeth N. Jochum ●

ITility, LLC
B-421871.3

The protester argued that the Department of Homeland Security had unreasonably assessed the awardee a “positive” based on an incorrect understanding of what the awardee had proposed.
Specifically, the protester argued that, while the Agency assigned a positive for an element of the awardee’s proposal relating to enterprise risk management (“ERM”), the awardee’s proposal actually used ERM to refer to enterprise resource management.
According to the Government Accountability Office (“GAO”), the Agency did not substantively refute this allegation, so GAO sustained the protest.
GAO also agreed with the protester that the Agency unreasonably evaluated offers in two other respects:
1. First, the Agency unreasonably found that both the protester and awardee met key personnel requirements, when the protester had offered personnel that met qualifications identified in the RFP as “preferred.”
2. Second, the Agency found that the protester’s transition plan “met the requirements,” but failed to document any qualitative evaluation of the proposed plan, including the protester’s plan to have the contract fully staffed by Day 1 as the incumbent.
In both instances, GAO agreed that the Agency had ignored a potential discriminator in favor of the protester and sustained the protest grounds.

Timely Protesting Non-Solicitations at GAO

Merle M. DeLancey, Jr. and Michael J. Slattery ●

The Government Accountability Office’s (“GAO”) rules for timely protesting non-solicitations can be confusing. Offerors (or potential offerors) diligently monitoring SAM.gov need to focus on the substance of a non-solicitation posting and not simply the name or subject line an agency uses for the posting. Postings titled Notices of Intent, Sources Sought Notices (“SSN”), and Requests for Information (“RFI”) (collectively “pre-solicitation notices”) are common but the information therein can be different even for nearly identical titled postings. For example, one agency’s RFI might request that interested parties submit statements of interest or capabilities while another agency’s RFI has no such requirement. Companies need to carefully review these pre-solicitation notices to determine if they must protest the notice to be timely under GAO’s rules, or if they can wait and protest the terms of a subsequently issued solicitation.

The general rule is that GAO only has protest jurisdiction over actual solicitations—not pre-solicitation notices—since the pre-solicitation notice does not set forth the actual final requirements of an agency, but only a draft of the eventual requirements. Protests of such pre-solicitation documents that do not reflect the final actual requirements of the agency will be dismissed as premature, as they only anticipate improper agency action. See F-Star Zaragosa Port, LLC, B-417414.1, B-417414.2, Apr. 15, 2019, 2019 U.S. Comp. Gen. LEXIS 110 at *1; see also AeroSage, LLC, B-415893, B-415894, Apr. 17, 2018, 2018 Comp. Gen. ¶ 142 at 4-5 (explaining that “a sources sought notice is a request for information by the agency and not a solicitation that anticipates the award of a contract”); Onix Networking Corp., B-411841, Nov. 9, 2015, 2015 Comp. Gen. ¶ 330 at 5 (concluding that a request for information provided to prospective vendors is not a “solicitation that embodies [the agency’s] actual requirements”); Sigmatech, Inc., B-296401, Aug. 10, 2005, 2005 Comp. Gen. ¶ 156 at 4 (finding that a “sources sought notice is not a solicitation”).

60-Second Sustains: Criterion Corporation

Elizabeth N. Jochum ●

Criterion Corporation
B-422309

In Air Force procurement for base operations support services, the Agency had eliminated the protester from consideration for award on the basis that its proposed price was significantly lower than the internal government estimate (“IGE”) and the average proposed price and, therefore, was found unrealistic.
The protester challenged its elimination, arguing that it proposed a unique technical approach that supported its low price and that the agency ignored the technical approach, instead conducting a mechanical comparison of the proposed price to the IGE and the average price of other offerors.
GAO noted that the purpose of a price realism analysis is to determine whether proposed prices are realistic for the work to be performed, reflect a clear understanding of the requirements, and are consistent with the offeror’s unique method of performance.
In this case, GAO found that the Air Force had not considered the entirety of the protester’s technical solution when concluding the proposed price was unrealistic.
While the Agency had compared the number of employees the protester proposed and its labor rates, it had not considered its labor mix or whether its technical solution was unique.

60-Second Sustains: Deloitte Consulting LLP and Softrams LLC

Elizabeth N. Jochum ●

Deloitte Consulting LLP
B-422094; B-422094.2

During the evaluation of the awardee’s quotation, the Department of Homeland Security identified a potential Organizational Conflict of Interest (“OCI”) with one of the awardee’s proposed teaming partners.
The Agency engaged in discussions with the awardee, in which the awardee informed the Agency that the teaming partner with the potential OCI would be immediately removed from the team and would not participate in the program upon award.
Deloitte argued that the agency failed to consider the impact of the teammate’s removal on the awardee’s proposed approach to performance.
The Agency provided declarations asserting that the agency had considered the elimination of the teaming partner and its impact on performance, but the Government Accountability Office (“GAO”) found that those declarations were unsupported by the contemporaneous record and gave them little weight.
GAO sustained the protester’s argument that the Agency’s evaluation was unreasonable because it failed to consider the elimination of the teaming partner.

Deloitte Consulting LLP; Softrams, LLC
B-421801.2,B-421801.3,B-421801.4,B-421801.5,B-421801.6

DISPARATE TREATMENT

Both protesters alleged numerous instances where the Library of Congress engaged in disparate treatment by assessing strengths for elements of the awardees’ proposals that were substantially indistinguishable from the protesters’ proposal features that did not receive strengths.
In most cases, the Agency argued that the strengths in question stemmed from differences between the proposals or that the protesters’ proposal features were, in fact, captured in the evaluation. However, in a few instances, the Agency instead argued that the disparate treatment was insignificant or did not prejudice the protesters.
GAO found these instances amounted to a concession by the Agency that there had been disparate treatment and sustained these protests, since the competition was extremely close and any change in competitive standing could have impacted source selection.

FY2023 GAO Protest Statistics: Dramatic Increase in Sustain Rate Is Illusory, but Increase in Overall Filings Is Real

Luke W. Meier and Carolyn R. Cody-Jones ●

The Government Accountability Office (“GAO”) has released its Annual Report to Congress summarizing bid protest activity for Fiscal Year 2023 (GAO-24-900538). Although there is a seemingly drastic increase in the number of protests sustained, the real trend worth noting is an uptick in protests filed at GAO—reversing a recent trend that had seen GAO protest numbers falling.

With the full context in hand, the FY 2023 GAO protest data mostly show a steady continuation of recent trends: the number of sustains and sustain rate remains largely the same as FY 2022, “effectiveness” remains high and stable (57 percent), and the hearing rate remains low at two percent (22 for the year). The meaningful increase in cases filed at GAO shows that protesters still view GAO as a valuable protest forum, even as an increasing number of protesters opt for the more fulsome document production and (at times) less deferential analysis they expect at the U.S. Court of Federal Claims.

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