What if There’s a Disagreement Within an Agency as to Who Should Win a Contract Award?

It’s not unusual to have disagreements within an agency as to who is the best offeror. Sometimes an agency’s Source Selection Evaluation Board (SSEB) is at odds with its Source Selection Authority (SSA). Although the SSA (who is often the Contracting Officer) ultimately decides who wins the contract, there are limits to SSA’s ability to reject an SSEB’s advice.

Opposing Assessments

In a recent case, Immersion Consulting protested after losing a best value procurement for program management services at the Defense Travel Management Office. Immersion was the favorite of the SSEB. Rated by the SSEB in three non-price categories, Immersion earned 3 strengths and no weaknesses. Their competitor, Net Impact, earned 2 strengths and one weakness. Reflecting that difference, Immersion was rating “outstanding,” and Net Impact only “acceptable.”

Beyond the difference in technical factors, there was a significant price difference between the two competitors. While Net Impact came in just under $11M, Immersion’s proposal would cost the department $14M. Typically, if the superior proposal costs significantly more than the others, there would be a cost/technical tradeoff in which the agency would determine whether it was worthwhile to pay the higher price. But the Defense Department’s SSA, to whom the SSEB reported, took an altogether different stance, and decided that Net Impact should win the contract.

 

Why the Difference of Opinion?

The SSA felt that Immersion’s proposal wasn’t nearly as attractive as the SSEB made it out to be. He found that Immersion’s strengths were unjustified because they lacked detail, were irrelevant to the work statement, and weren’t not proven beneficial to the Government. Subsequently, he removed one of SSEB’s 3 strengths for Immersion and downplayed another. With Net Impact, the SSA decided he didn’t agree with the weakness the SSEB had identified, feeling they lacked detail. After the SSA’s analysis, Immersion slipped down to a rating of “acceptable,” and was then equivalent to Net Impact in the technical factor. They also had identical past performance scores. The only differentiating factor, then, was price, and since Net Impact came in lower, they got the award.

 

Immersion Consulting Protests at GAO

Having lost the contract despite winning over the SSEB, Immersion protested at GAO. GAO affirmed that an SSA is not bound by the SSEB’s evaluation (or that of other agency evaluators). But, when the SSA comes to a different conclusion that the rest, he/she must prove that his/her analysis is rationally based and grounded in the proposal and the solicitation.

And that’s where the Defense Department fell short here, according to GAO. GAO felt that the SSA’s reasons for rejecting the SSEB’s conclusions were ultimately wrong. Where the SSA felt that there was insufficient detail in the SSEB’s evaluation, GAO felt there was ample detail. Where the SSA felt the SSEB’s analysis didn’t demonstrate a clear relationship to the performance of work statement, GAO felt the analysis was well grounded in it. So, without an adequate reason to depart from the SSA’s evaluation, GAO overturned the award decision, upheld the protest, and sent the procurement back to the Defense Department for further review.

 

Implications for the Agency & the Offeror Moving Forward

Just because Immersion’s protest got traction at GAO doesn’t mean they’ll win the coveted contract. The Defense Department must make a new source selection decision and determine if Immersion’s better proposal is worth its higher price. There’s an indication that there may be insufficient labor hours in Net Impact’s proposal, so that will have to be fleshed out in the re-evaluation. The SSA, if he wants to go with Net Impact, will need to come up with a justification that withstands scrutiny at GAO. That means he must properly document his selection, grounding it in the proposals and the solicitation.

This case doesn’t necessarily provide a template for contractors who lost a contract despite winning favor with agency evaluators. In fact, Immersion’s protest represents a relatively rare outcome, in which the SSA loses in a disagreement with the SSEB. But when there’s no basis in the record for the conclusions that an SSA reaches, GAO will uphold the protest.

 

Immersion Consulting, Inc, B-415155; B-415155.2, et al, Dec. 4, 2017 

For more on this case, listen to my interview with Tom Temin on Federal News Radio’s Federal Drive podcast.

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