We at SmallGovCon have explored some examples of protests where an unfortunate oversight by a contractor has been the difference between winning and losing. This, of course, can be very frustrating to contractors, especially considering that federal agencies often get leeway where contractors wouldn’t. But federal agencies, too, make mistakes, and even simple ones can be enough for a successful protest. This was the case in a January 2023 decision by GAO.
In June 2021, the Secret Service issued a task order for some of its telecom and IT service needs. AT&T Corp., B-421195 (Jan. 17, 2023). As is often the case, the award decision would be made on a best-value basis. Here, there would be four technical factors: Performance Management, Technical Approach, Transition Approach, and Past Performance. The agency received five proposals, one from AT&T and another from Lumen Corporation (You might remember them as CenturyLink).
The proposals were first reviewed by an evaluation team. AT&T received a rating of “good” for the factors of Performance Management and Technical Approach and “satisfactory” for the other two. The evaluation team had initially assigned AT&T’s proposal 42 strengths across the non-price factors. Lumen received a rating of “satisfactory” for all four non-price factors. However, Lumen offered a lower price than AT&T: $28,607,930 as opposed to $36,838,243.
This evaluation was then subjected to the review of the contracting officer (CO), who was also the source selection authority. The CO stated he agreed with the evaluation team’s ratings for AT&T. He, however, listed just nine specific strengths of AT&T’s proposal in his analysis. He later would explain that he did not agree with all the strengths the team assigned AT&T’s proposal. As for Lumen’s proposal, the CO noted it was the lowest priced, and furthermore identified four additional strengths in Lumen’s proposal, raising its adjectival rating for Performance Management from “satisfactory” to “good.” The CO then explained that while AT&T’s offer was more highly technically rated overall, it was not so much better than Lumen’s to justify the price difference and awarded the task order to Lumen.
AT&T protested this award, and its argument rested on the fact that the CO had failed to include an explanation as to why he only noted nine strengths as opposed to the 42 strengths the evaluation team found. GAO agreed with AT&T noting “it is an agency’s obligation to adequately document the basis of its evaluation and best-value tradeoff, and, where an agency fails to do so, it runs the risk that our Office will be unable to determine whether the agency’s evaluation was reasonable. In addition, changes made by the SSA to the TET’s evaluation record must be adequately documented.” Furthermore, while GAO will consider post-protest explanations that provide a rationale and fill in previously unrecorded details, that is subject to the requirement that the explanation must be consistent with the record.
GAO observed that the record contained no support for the arguments the agency now raised as to why the CO discarded most of AT&T’s strengths. For example, the CO had removed a strength because he stated other offerors had discussed the ability to meet that same strength. But the record did not support this argument even.
It is worth noting that GAO’s decision here rests entirely on the fact that the CO didn’t explain his reasoning, not that his decisions were somehow wrong. For example, GAO observed that the CO did provide reasons as to why he assigned Lumen more strengths than the evaluation team. In other words, what this all came down to is that the CO simply didn’t explain his decisions on AT&T’s proposal in the evaluation. Agencies have to explain their reasoning for their decisions in their documentation. They can be right as rain and it won’t matter if they don’t explain why they did what they did. GAO may have even agreed with the CO’s conclusions, but he didn’t show his work. This is something contractors should be on the lookout for when they get notified of award decisions.
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