As regular SmallGovCon readers surely know, federal agencies have a great deal of discretion when procuring products and services. Protesters are often facing an uphill battle in attempting to demonstrate an agency abused that discretion in making an award. This is because typically, so long as the agency properly documents its decision making process, sticks to the solicitation terms, and there is documentation in the record that reasonably supports the agency’s decision, GAO will rule in the agency’s favor. Nevertheless, there are occasions when the agency will apply evaluation criteria unevenly, or base its decision on facts or considerations that are not allowed under the Solicitation. This is precisely what happened in a recent GAO protest which resulted in a win for the protester, and serves as a great reminder for contractors as to what situations may result in a successful bid protest.
In Amentum Technology Inc., B-423898 et al., (Comp. Gen. 2026) the Defense Intelligence Agency (DIA) issued a task order proposal request (TOPR) seeking to support the United States Central Command (USCENTCOM) Intelligence Directorate in performing consolidated intelligence analysis and associated activities. The solicitation anticipated award would be made to the highest technically evaluated proposal with a fair and reasonable price, considering price reasonableness and a single non-price factor. Under these procedures, the agency would first evaluate offerors’ technical proposals to assess offerors’ ability to meet the requirements set forth in the performance work statement (PWS). DIA was supposed to consider, in order of importance, the offeror’s: (1) proposed approach, similar expertise, and substantial understanding of applicable PWS areas, (2) depth of knowledge and expertise, and (3) management approach. These three subfactors would make up the technical factor evaluation. Offerors provided technical proposals via an oral presentation, and DIA was required to assess its “confidence level” for each offeror and assign a corresponding rating of “high,” “some,” or “low” confidence. The agency would then evaluate price proposals to ensure that the highest technically evaluated proposal was proposed at a fair and reasonable price.
The three offerors discussed in this decision were GDIT (the awardee), SOSi, and Amentum. GDIT received a technical rating of “high confidence” and proposed a price of $814,949,286; SOSi received a “high confidence” technical rating and proposed a price of $806,643,630; and Amentum (the incumbent) received a “some confidence” technical rating and proposed a price of $789,562,142. The source selection authority determined that GDIT’s proposed price was fair and reasonable and issued the task order to GDIT, at which point both Amentum and SOSi filed protests.
Documenting the Decision
As always, GAO emphasized that evaluation of proposals in a task order competition, including the determination of the relative merits of proposals, is primarily a matter within the agency’s discretion and that it doesn’t reevaluate proposals but instead examines the record to determine whether the evaluation and decision were reasonable and consistent with the solicitation’s evaluation criteria. However, GAO noted it will sustain a protest if the agency’s conclusions are inconsistent with the solicitation’s evaluation criteria, undocumented, or not reasonably based.
Turning to the subject procurement, SOSi received a single negative finding, which stemmed from the proposal’s reference to a legacy network. DIA “believed” that SOSi referred to a regional information exchange system that had been used to support a specific operation in Afghanistan and was out of date by over eight years. However, nowhere in the record (in this case, an audio recording of SOSi’s oral presentation) was there any reference to the legacy network in question.
GAO stated: “An agency that fails to provide documentary support for its evaluation of proposals or source selection decision bears the risk that its determinations will be considered unsupported, and absent such support, our Office may be unable to determine whether the agency had a reasonable basis for its determinations. Here, the agency asks us to accept the decreased confidence finding for SOSi’s oral presentation by simply referring to the evaluators’ conclusion, yet offers nothing from the audio recordings of the offerors’ oral presentations, the contemporaneous record, or otherwise to support that conclusion.”
As a result of this lack of documented evidence, GAO agreed with SOSi, that the Agency’s evaluation was not supported by the record (as it didn’t show this regional information exchange system) and sustained its protest.
As you likely know, an essential element of any viable protest is the existence of prejudice against the protester, meaning, “but for the agency’s actions, it would have had a substantial chance of receiving the award.” Here, when DIA determined that GDIT had the highest technically evaluated proposal, DIA had relied on the understanding that GDIT did not refer to antiquated legacy networks, while believing SOSi did refer to antiquated legacy networks. Because GAO could not find anything in the record to establish a reasonable basis for the agency’s decision related to SOSi, it could then not say “what impact a reasonable evaluation would have made on the agency’s identification of the highest technically evaluated proposal,” as both DGIT and SOSi “would have been assigned the same rating of ‘high confidence’ with neither proposal having been assessed a ‘decreases confidence’ finding.” When in doubt regarding prejudice, GAO resolves doubts in favor of the protester, and therefore concluded that SOSi had established the prejudice necessary to sustain the protest.
Unequal Evaluation
Moving to the other basis for the sustain here, Amentum, argued that the difference between its proposal and GDIT’s was the result of “a systematically unfair evaluation” which subjected it to more scrutiny than GDIT.
GAO explained that it is “a fundamental principle” that an agency must “treat all offerors equally and evaluate their proposals evenhandedly against the solicitation’s requirements and evaluation criteria.” An example of disparate treatment according to GAO would be “reading some offerors’ proposals in an expansive manner and resolving doubt in favor of the offeror, while reading other offerors’ proposals narrowly and applying a more exacting standard that requires affirmative representations within the four corners of the proposal”
The evaluation in question for this protest ground revolved around GDIT’s and Amentum’s responses to questions involving their planned approach to “upskilling” incumbent employees who would be hired to perform the task order. GDIT received credit for mentioning specific aspects of the PWS where it had upskilling plans in place, whereas Amentum was penalized for allegedly omitting any reference to that aspect of the PWS in its proposal. GAO once again found no evidence in the record that Amentum actually failed to address this aspect of the PWS in its oral presentation; on the contrary, GAO found Amentum specifically invoked upskilling in connection with the referenced component. GAO observed that, although DIA attempted to identify other distinctions between GDIT’s proposal and Amentum’s proposal, the agency’s explanation for the difference was limited to “reiterating the bare conclusions from the evaluation record.”
On that record, GAO could not determine whether the agency’s different evaluation conclusions were the result of differences in the proposal or instead from different approaches to evaluation overall. “[T]he agency’s decision to award GDIT an increase in confidence and Amentum a decrease in confidence for training, supports the protester’s contention that DIA established a different and higher standard of review to evaluate Amentum’s proposal, which amounted to an unequal evaluation.” Therefore, the protest was also sustained on this protest ground, which GAO writing: “we find that we cannot determine that these areas of the agency’s evaluation were reasonable, and because the record does not show how a proper evaluation would have affected the identification of the highest technically evaluated proposal, we conclude that the protester was prejudiced by the agency’s evaluation.”
Conclusion
This case illustrates several standards that protesters have to satisfy when bringing an award protest to GAO. These standards are things that need to be kept in mind by contractors when they learn they did not get an award and are contemplating a protest. If you are a potential protester merely questioning the logic behind the agency’s decision, you are likely in for a losing effort. But, if on the other hand you can show that the agency essentially acted arbitrarily by failing to document its process in a meaningful way, you have a much better likelihood of protest success. Federal agencies must adequately document their evaluation processes, and when one fails to do so, it likewise makes sense to set such an award decision aside. Finally, if a protester can show that the agency applied uneven or unfair evaluation standards—typically by treating one similar offeror favorably and another disfavor ably for no discernable reason—GAO could sustain a protest on this basis.
If you are a contractor, keep these items in mind when you review an award decision or get a debrief. Then if you think there may be grounds for a protest, or have questions about protests, reach out to federal contracting attorneys, like us, to talk further.
Editor’s Note: Special thanks to our wonderful legal clerk Will Orlowski for putting together this blog post.
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