GAO: Single Instance of Disparate Treatment Prejudiced Protester

A GAO protest can rest on a number of different grounds. One of the most fertile, however, is disparate treatment. That is, GAO is particularly sensitive to arguments that a procuring agency wasn’t even-handed in evaluating the same features or omissions in competing proposals.

Disparate treatment was the theme in a recently sustained GAO protest: Battelle Memorial Institute, B-418047.3 et al. (Comp. Gen. May 18, 2020). In the underlying procurement issued through a task order on the OASIS contract, the Centers for Disease Control needed a contractor for consultation, research, and development activities in support of CDC’s work to prevent and respond to national and international influenza epidemics and pandemics. The solicitation contemplated issuing a single time-and-materials task order for a 1-year base period with one 1-year option period.

In response the solicitation, the awardee and Battelle both received an Acceptable rating for their technical proposals. The awardee’s price was $23,390,923. And the protester’s price was very close behind at $23,669,403. CDC found both offerors to be “overall technically equivalent,” so it chose the awardee as the best value given its lower price.

In its protest, Battelle argued that CDC unequally treated the two proposals relative to the same solicitation requirement. That requirement called for the contractor to “conduct laboratory studies assessing innate and adaptive immune responses to influenza vaccination and infection populations of different ages and developing appropriate primate models to test novel vaccines and therapeutic interventions against seasonal, novel, and pandemic influenza.” The requirement also required the contractor to “investigate the role of CD8 T-cells in influenza infection.”

In its review of Battelle’s proposal for the above requirement, CDC assigned a weakness because the “firm did not specifically describe the technical approach to investigating the role of CD8 T-cells in influenza infection.” In its CDC’s view, this omission suggested that “Battelle might not understand the importance of the CD8+ T-cell immunity in the response to influenza infection.”

Like Battelle’s proposal, the awardee’s proposal did not describe its technical approach to investigating the role of CD8+ T-cells in influenza. But the CDC did not assign a weakness for this specific omission, as it had done with Battelle. CDC did, however, identify two other weakness. To get around the allegation of disparate treatment, CDC argued that these two weaknesses “encompassed [the awardee’s] failure to address the requirement to investigate the role of CD8+ T-cells in influenza infection.”

GAO was unconvinced and found that CDC’s argument was not supported by the record. The two weaknesses assigned to the awardee’s proposal (for the requirement at issue) concerned the methodology of the awardee’s investigative techniques. Whereas, the weakness assessed to Battelle was due to a failure to address a subject matter for investigation. To GAO, the proposals were indistinguishable as it related to investigating the role of CD8+ T-cells in influenza infection–neither addressed it. Yet, CDC assessed a weakness against Battelle but not the awardee.

This single inconsistency was enough for GAO to sustain the protest, especially because the price difference between the two offerors was so close.

Here, Battelle and [awardee’s] proposals were separated by a price difference of less than two percent and the CDC considered the proposals to be technically equivalent. Given the closeness of the two proposals in terms of technical merit and price, we cannot say what impact even just one evaluation error would have had on the CDC’s best-value decision. Any change in [awardee’s] evaluation could have widened the gap between the two proposals sufficiently that the SSA no longer considered them technically equivalent, potentially resulting in a different best-value decision. In such circumstances, we resolve any doubts regarding prejudice in favor of the protester because even a reasonable possibility of prejudice forms a sufficient basis to sustain a protest.

So, there you have it. Agencies have to treat equivalent proposal features or omissions the same. If one proposals fails to discuss an issue, and is assessed a weakness, another offeror must be treated the same if it commits the same mistake. Conversely, strengths recognized in one proposal must be handed out to all other proposals with that same attribute.