GAO: Protest Sustained Where Agency Improperly Applied Adjectival Ratings

Recently, GAO sustained a bid protest where the ratings assigned to the unsuccessful offeror’s proposal did not conform to the definitions identified within the Solicitation.

For those of you frequent the blog, you may recall earlier this year when we blogged on GAO’s decision in Immersion Consulting, LLC, B-415155 et al. (Dec. 4, 2017) where the Source Selection Authority had unilaterally revised the Source Selection Evaluation Board’s evaluation prior to making an award decision. GAO sustained the protest and instructed the agency to reevaluate proposals. This same procurement was subject to another round of protests following the agency’s reevaluation.

We covered part of the GAO’s decision to sustain the second protest due to pervasive issues with the awardee’s staffing proposal in a recent blog post. This, however, was only one basis for GAO’s decision. As discussed in this post, GAO also sustained the protest due to issues with the agency’s application of the adjectival ratings.

As more fully discussed in the earlier post, Immersion Consulting involved a procurement of program management support services by the Department of Defense’s Defense Human Resources Activity. Proposals were to be evaluated on three factors: technical, past performance, and price. Technical approach was the most important factor, followed by past performance, then price. The Solicitation explained that the agency intended to use adjectival ratings to evaluate proposals.

The Solicitation provided definitions for each of the adjectival ratings. As relevant here, an adjectival rating of “Acceptable” was defined as follows:

The [quote] meets the stated requirements. The response is considered complete in terms of the basic content and level of information the [g]overnment seeks for evaluation. There is a reasonable probability of success and little risk that this [vendor] would fail to meet the quantity, quality, and schedule requirements. Minor weaknesses, if any, may not need to be corrected to make award.

On the other hand, a rating of “Outstanding” was defined as follows:

The [quote] exceeds stated requirements, as reflected through an innovative and/or comprehensive approach. The response is complete in terms of the basic content and level of information the [g]overnment seeks for evaluation. There is a high probability of success and minimal risk that this [vendor] would fail to meet the quantity, quality, and schedule requirements. Minor weaknesses, if any, need not be corrected to make award.

Immersion and NetImpact Strategies, Inc. were the only vendors to timely submit proposals in response to the solicitation. During its initial evaluation, the SSEB identified 3 strengths in Immersion Consulting’s proposal under the technical factor, whereas NetImpact received 2 strengths and 1 weaknesses. Importantly, the SSEB noted that “[Immersion’s] quote meets the stated requirements and exceeds in some areas[,]” and “[t]here is a high probability of success and little risk that [Immersion] would fail to meet the quantity, quality, and schedule requirements.”

The SSA, however, unilaterally revised the SSEB’s evaluations and removed 1 strength from Immersion’s proposal and both a strength and the weakness from NetImpact’s proposal. Accordingly, both Immersion and NetImpact’s proposals were evaluated to be Acceptable.

NetImpact was subsequently named the awardee. Immersion Consulting protested, in part, because the SSA had unilaterally revised the strengths and weaknesses the SSEB had assigned to offerors. GAO sustained the protest because “the record did not meaningfully explain the SSA’s rationale for removing the weaknesses assessed by the SSEB in NetImpact’s quotation or for removing a strength assessed by the SSEB in Immersion’s quotation under the staffing plan subfactor.” GAO recommended the agency reevaluate proposals under the technical factor.

During reevaluation, the SSA reconsidered each of the strengths and weaknesses identified by the SSEB during its evaluation of the technical factor. This time, the SSA concurred with the findings of the SSEB. Despite having NetImpact’s weakness reinstated, the SSA nevertheless concluded that both offerors were evaluated to be Acceptable under the technical factor. Consequently, NetImpact was identified as the awardee.

Immersion again protested NetImpact’s award before GAO in Immersion Consulting, LLC, B-415155.4 et al. (May 18, 2018) (hereinafter Immersion Consulting 2). Among other things, Immersion challenged the agency’s adjectival rating of Acceptable for its proposal despite receiving 3 strengths and no weaknesses. According to Immersion, since the SSEB had noted that its proposal exceeded the Solicitation’s requirements in some areas and concluded there was a high probability Immersion would successfully perform the contract requirements, its proposal should have received a rating of Outstanding instead of Acceptable.

GAO agreed with Immersion. As it explained, “the SSEB’s summary rating comments relate more to an outstanding rating than an acceptable rating[.]” However, the record developed by the agency failed to explain why it believed an acceptable rating was appropriate over an outstanding rating. According to GAO, “the agency’s analysis contains elements relevant to both an acceptable and an outstanding rating. As a result, the record provides no basis to conclude whether the agency intended to assign Immersion’s quotation an acceptable or an outstanding rating.” Given the lack of documentation regarding the agency’s adjectival rating, GAO sustained the protest on this basis.

Immersion Consulting 2 is a notable example of the limits GAO will place on agency discretion. While the assignment of adjectival ratings is typically an area of broad agency discretion, GAO will review the ratings an offeror received to determine whether those ratings match the definitions provided within the Solicitation. In those situations where it is unclear if the assigned adjectival ratings conform to the definitions provided within the Solicitation, it will sustain the protest.