February 29, 2016 - Protests & Litigation

GAO Further Clarifies Its Rule on Differing Technical Reevaluations

LitigationIt is not surprising that after four protests of the same task order, three corrective actions by the agency, and four evaluations of technical proposals, the final evaluation ratings may differ from prior evaluations. Such variations are not necessarily improper as the GAO made clear in a recent protest.

On January 29, 2016, the GAO released a decision denying a protest filed by MILVETS Systems Technology, Inc., B-409051.7; B-409051.9. The procurement history at issue in MILVETS was complicated, beginning with the release of the solicitation by the Department of Agriculture (“USDA”) in July 2013. In sum, two consecutive awards were made to MILVETS and each was protested, causing the USDA to take corrective action twice by reevaluating technical proposals.

After the second award to MILVETS was protested, the USDA assembled a new technical evaluation panel (“TEP”) and source selection authority (“SSA”) that had no knowledge of the first two evaluations. The new TEP reevaluated quotations and the new SSA awarded a task order to DKW Communications, Inc. MILVETS protested the third award, causing the USDA to take yet another round of corrective action by amending the solicitation and seeking revised quotations.

The USDA made the fourth and final award to Metrica Team Venture, and MILVETS once again protested the award. During the first two evaluations, MILVETS’s technical proposal was rated “highly acceptable” under both the technical approach and the management approach. During the third and fourth evaluations, however, MILVETS was rated only “acceptable” under both the technical approach and the management approach. The revised, lower scores formed the basis of MILVETS’s final protest.

MILVETS claimed that since the changed evaluation ratings were not reasonable because its proposal was virtually identical to its prior submissions, its protest should be sustained consistent with GAO’s decision in eAlliant, LLC, B-407332.6, B-407332.10, Jan. 14, 2015, 2015 CPD ¶ 58. Like the MILVETS protest, the eAlliant case followed a series of protests and rounds of voluntary corrective action by the Navy. In its protest, eAlliant challenged the reasonableness of the Navy’s reduction in the number of assigned technical strengths. Also, as in the MILVETS case, a new TEP was convened to evaluate proposals during the third round of evaluations in eAlliant. GAO distinguished the facts in the eAlliant decision and further clarified its rule on differing reevaluations of technical proposals.

Unlike MILVETS, the SSA in eAlliant remained the same throughout each of the evaluations and, importantly, there was not adequate support in the record explaining why the SSA agreed with the reduction in technical strengths after the SSA previously endorsed the higher technical ratings. According to GAO, the general principle that reevaluations can result in different ratings without the need for an explanation does not apply when the same SSA has been involved throughout the reevaluation and corrective action process. The new TEP and new SSA in MILVETS were not required to explain the reduction in technical ratings, and GAO denied the protest.

In its protest, MILVETS also unsuccessfully argued that the USDA was required to explain the revised evaluation because the same contracting officer remained in place throughout all four evaluations. GAO rejected this expansive application of the requirement to provide explanations for contradictory conclusions because, although the contracting officer ultimately reported the awards, the contracting officer did not participate in, or support, the technical evaluations.