Pre and Post Award Bid Protest

GAO Determines that Lowest Price Is Not Enough

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This case determined that the Source Selection Authority’s (SSA) ignoring a proposal's strengths and weaknesses in favor of a lower price was illegal. The Matter of Immersion Consulting was a Government Accountability Office (GAO) bid protest regarding a Federal Supply Service (FSS) solicitation for program management support for the Defense travel management office. Immersion Consulting and NetImpact both submitted proposals and were found to satisfy the requirements of the solicitation. However, in the Source Selection Evaluation Board (SSEB) found three strengths in Immersion’s proposal and two strengths and a weakness in NetImpact. You may already have guessed for the story is going. NetImpact’s proposal was the lowest price, perhaps unsurprisingly, the SSA overruled the SSEB’s  strength and weakness determinations and found that the two bidder’s proposals were technically tied. Therefore, the SSA decided that price would be the determining factor and selected NetImpact’s proposal for award. Immersion protested.8

The SSA’s Technical Determination

In sustaining Immersion’s protest, the GAO stated, “Although source selection officials may reasonably disagree with the ratings and recommendations of lower-level evaluators, they are nonetheless bound by the fundamental requirement that their independent judgments must be reasonable, consistent with the provisions of the solicitation, and adequately documented.” The Arcanum Grp., Inc., B–413682.2, B–413682.3, Mar. 29, 2017, 2017 CPD ¶270 at 8; IBM U.S. Fed., a division of IBM Corp.; Presidio Networked Solutions, Inc., B–409806 et al., Aug. 15, 2014, 2014 CPD ¶241 at 14. It further determined, “On this record, we cannot conclude that it was reasonable for the SSA to remove [NetImpact’s] weakness. Here, the SSEB identified specific concerns that NetImpact may not provide sufficient staffing to adequately fulfill the solicitation's requirements based on discrepancies in its staffing plan. See AR, Tab 14, TER at 507.

The GAO also did not agree with the SSA’s assertion that “the [p]rotester's alleged discrepancy is non-existent” because the protester “has not shown that [the] different numbers in different charts equate to a weakness-generating discrepancy.” The GAO recounted that it “was the SSEB, not the protester that identified discrepancies in the two labor categories as a weakness.”

The SSA Points to its Price Determination

The DOD’s attempted to argue that SSA considered the weakness the SSEB assessed to NetImpact's quotation under the staffing plan subfactor as part of its price evaluation. However, the GAO determined that while the agency concluded that the labor hours proposed by Immersion were sufficient for the proposed effort, the agency's evaluation is silent as to whether NetImpact's proposed labor hours were sufficient for the proposed effort.

SSA Removed One of Immersion’s Strengths

Immersion also complained that its protest at the SSA removed one of the strengths that the SSEB assigned to its proposal. In removing the strength, the SSA “concluded that the SSEB’s comments on [Immersion’s] were too general, and did not specify how the quotation exceeded” the performance work statement requirements, “the impact of the approach of the quotation, or how the approach benefited the government.” The GAO disagreed stating “the SSEB’s comments were specific and identify the impact of the approach of the quotation, as well as how the approach benefited the government.” Also, the GAO commented that the performance work statement required the contractor to provide subject matter expertise.


In sustaining Immersion’s protest, the GAL stated “there is no basis for our office to know what the ultimate source selection might have been, had these flaws occurred. In such circumstances, we resolve doubts regarding prejudice in favor of the protester since a reasonable possibility of prejudice is a sufficient basis for sustaining a protest.” The GAO recommended that the Source Selection Authority reevaluate quotations under the technical factor and document is evaluation.

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About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.


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