It’s rare but it does happen, that the Government Accountability Office (“GAO”) sustains five separate violations of the procurement regulations in a single protest. See Deloitte Consulting, LLP; Softrams, LLC, B-421801 et al, Jan. 30, 2024. All of the violations were made by the Library of Congress (“LOC”) in a procurement for agile system development support services. Here were the five separate bases for the sustain (any one of which should have resulted in a sustained protest):
- Disparate evaluation of proposals–agency treated substantively identical proposal features differently
- Awardee took a material exception to the terms of the solicitation
- Agency failed to utilize the solicitation’s disclosed price evaluation methodology
- Agency inadequately documented its past performance conclusion that all offeroors were technically equal
- Best value tradeoffs were based on a flawed underlying evaluation and were inadequately documented.
This blog will not discuss every sustained protest ground, but only comment on a few significant points. First, GAO noted that it is a fundamental principle of federal procurement law that a contracting agency must treat all offerors and evaluate their proposals even-handedly against the solicitation’s requirements and evaluation criteria. The protest demonstrates that the LC did not address much of the alleged disparate treatment, and the LC failed to explain why a particular offeror did not warrant the same strength that was assigned to another offeror.
The material exception involved an assumption about which of two competing data rights clauses took precedence. The issue was never addressed by the LC in discussions, and GAO noted that data rights clauses are generally material solicitation requirements.
The LOC’s price evaluation considered only 16 out of 18 total labor categories, even though use of all categories was required by the solicitation.
On past performance, the agency failed to address quality, and was done only in a summary manner.
In its best value analysis, the LOC mechanically counted only strengths, without any substantive explanation for the agency’s conclusions.
GAO sustained the protest, and recommended that the Agency seek revised proposals and make a new source selection decision considering the flaws enumerated in the GAO decision.
Takeaway: Source selection officials, don’t fall into these frequent traps that the LOC did.
For other helpful suggestions on government contracting, visit:
Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.