By Andrew Victor and Robert Nichols
A recent decision by the Government Accountability Office (GAO) provides guidance to protesters in defeating rationales for award decisions developed after a protest has been filed. The decision is notable because, while GAO generally gives little weight to an agency’s “explanation of its evaluation during the heat of litigation that is not borne out by the contemporaneous record,” GAO does permit agencies to fill in holes in the administrative record, letting agencies explain away procurement flaws.
In OGSystems, LLC, B-417026 et al., Jan. 22, 2019, the National Geospatial-Intelligence Agency held a task order competition for holders of the MOJAVE indefinite-delivery indefinite-quantity contract. The solicitation provided that there were two evaluation criteria: technical and price. Only two contractors bid, one of which was the incumbent. The agency considered the incumbent’s technical proposal to be superior but awarded the task order to the other offeror. The other offeror had proposed a 20% cheaper price.
The incumbent protested, asserting that the agency had unreasonably evaluated the awardee’s proposal. In reviewing an agency’s evaluation, GAO stated that it looks beyond the documents generated by the agency during its acquisition process and will consider agency arguments and “post-protest explanations” that “simply fill in previously unrecorded details.”
Despite the leeway afforded by GAO, the agency could not provide coherent post-protest explanations. For instance, the agency had reviewed the awardee’s initial proposal, assigned it several risks, and communicated these risks through oral discussions. The agency then requested final proposal revisions (FPRs). Upon receipt of FPRs, the agency believed that the awardee had made improper assumptions about the solicitation. Therefore, the agency amended the solicitation to clarify—but not expand—the performance work statement and requested second FPRs. Ultimately, the agency selected the 20% cheaper offer.
In reviewing the record and the agency rationales presented in litigation, GAO found that the agency did not explain how the awardee had resolved the initial risks. Further, the agency provided a generalized explanation trying to link the awardee’s second FPR to resolving the risks, but did not identify details. The lack of specificity was critical because the solicitation required offerors to provide a detailed approach to performing the work. GAO agreed with the incumbent that the agency had provided deficient explanations and sustained the protest.
A protester must charge uphill in a bid protest. Given that agencies have the opportunity to fill in gaps in the procurement record after a protest has been filed makes the hill steeper. But OGSystems shows that defeating post-hoc rationalizations is not impossible. Contractors should be ready to do the following:
- Clearly lay out the sequence of the negotiating history;
- Find where the agency’s explanations developed during the bid protest do not address or are inconsistent with its initial thinking and the solicitation;
- Be skeptical of the post-hoc rationale offered by the agency, as it may reflect a disconnect between the agency’s thinking and the requirements of the solicitation; and
- Attack the level of detail offered by the agency—the more general the explanation, the more likely GAO will sustain the protest.