When an agency reevaluates proposals in response to a protest, the reevaluation must be thorough and reasonable.

In a recent GAO bid protest decision, GAO sustained a protest because the agency’s reevaluation of proposals, undertaken after a protest was sustained, did not reasonably address “widespread discrepancies” in the awardee’s proposal.

Earlier this year, we blogged on GAO’s decision in Immersion Consulting, LLC, B-415155 et al. (Dec. 4, 2017) where the SSA had unilaterally revised the SSEB’s evaluation prior to making an award decision. GAO sustained the protest, and instructed the agency to reevaluate proposals. Following the reevaluation, GAO was once again called on to review this troubled procurement, and determined the agency’s evaluation was still flawed, despite corrective action.

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. Award was to be made on a best value basis. Notably, vendors were also specifically instructed to demonstrate how their proposed staffing would support the Solicitation’s technical requirements.

Immersion and NetImpact Strategies, Inc. were the only vendors to timely submit proposals in response to the Solicitation. 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.

Responding to GAO’s decision, the agency elected to reevaluate proposals, but limited its reevaluation to the technical factor. It also performed a new trade off analysis. During the reevaluation, the SSA performed a second independent evaluation of both Immersion and NetImpact’s proposals. This time, however, the SSA now agreed with the strengths and weaknesses SSEB had originally assigned.

As relevant to Immersion’s second protest, the SSA’s reevaluation found NetImpact’s proposal contained “inconsistencies in the [vendor]’s staffing plan matrix.” As GAO later explained, the staffing inconsistencies were wide spread:

For example, in one chart in NetImpact’s quotation, the [DELETED] labor category is proposed for PWS task areas 4.2 and 4.3, but in another chart, this labor category is proposed for PWS task areas 4.2, 4.3, 4.4, and 4.6. Id. Similarly, the [DELETED] and [DELETED] labor categories are proposed in one chart of NetImpact’s quotation for PWS task area 4.6 and in another chart for PWS task areas 4.1 and 4.5.

Despite this pervasive issue, the SSA nevertheless concluded a weakness (nothing more) was appropriate because “[t]he [g]overnment believes these inconsistencies are minor, correctable and can be addressed at [the post award conference].” The agency’s conclusion that the inconsistencies were minor was largely based on general language in NetImpact’s proposal stating that it would work with the agency during incumbent capture and that “NetImpact’s staffing approach thoughtfully considers skills and experience, as well as a match of personality and fit with the client organizational culture, and the demands of the role.”

Notwithstanding the reevaluation, the SSA concluded that both Immersion and NetImpact’s proposals were “Acceptable” under the technical factor. During its revised best value trade off, the SSA concluded that despite having two additional strengths over NetImpact, Immersion Consulting’s roughly $3.5 million price premium did not represent the best value to the government. NetImpact was again named the apparent successful offeror.

Immersion Consulting again protested NetImpact’s awarded before GAO in Immersion Consulting, LLC, B-415155.4 et al. (May 18, 2018) (hereinafter Immersion Consulting 2) . Among other things, Immersion Consulting challenged the assessment of only a weakness for NetImpact’s staffing ambiguities. According to Immersion Consulting, the SSA failed to sufficiently investigate the pervasive staffing errors in NetImpact’s proposal, which should have resulted in a score even lower than a weakness. The agency, however, responded that its evaluation was proper, and Immersion Consulting was merely disagreeing with the agency’s documented findings.

GAO concluded Immersion Consulting had the better of the argument. After reviewing the list of various staffing inconsistencies within the proposal, GAO explained “we agree with the protester that the agency unreasonably failed to acknowledge and meaningfully evaluate widespread discrepancies in NetImpact’s quotation with regard to staffing and sustain this protest ground.” Additionally, GAO explained “[t]he agency’s reliance on these general representations by NetImpact, however, is inconsistent with the specific terms of the solicitation[,]” which “required vendors to demonstrate how their staffing plan supported the technical approach.” As such, NetImpact’s assurances that it would provide a “flexible” approach to staffing were insufficient to overcome the blatant contradictions within its proposal.

GAO’s decision in Immersion Consulting 2 highlights the need for agencies to take thorough corrective action following a sustained protest. Here, the agency elected to take the bare minimum action to correct the flaw that GAO sustained in the first protest by reinstating the strengths and weaknesses the SSA had unilaterally altered. As GAO explained, however, merely reinstating the weakness for NetImpact’s proposed staffing without more thoroughly investigating the underlying issue was nevertheless still insufficient, as the record demonstrated there were pervasive problems with its staffing approach.

According to GAO, “[t]he overriding concern for our Office’s review is not whether the evaluation results are consistent with the earlier evaluation results, but whether they reasonably reflect the relative merit of the offers.”  While corrective actions often do adequately address all of the issues with a particular procurement, Immersion Consulting 2 makes clear GAO will send flawed evaluations back to the agency for a second review.

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