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Challenging an agency’s failure to award a “strength” for a proposal feature can prove to be an exercise in futility.  GAO frequently characterizes this oft-rejected argument as mere disagreement and defers to the agency’s conclusions.  But, following GAO’s decision in Tech Marine Business, Inc., B-420872, Oct. 14, 2022, the tide may be turning.  Agencies are now required to demonstrate that their decision not to award strength credit was reasonable and consistent with the stated evaluation criteria.

The protester, Tech Marine Business, Inc. (Tech Marine) alleged that the Navy failed to award Tech Marine a strength for its transition plan.  The solicitation required the awardee to “begin work immediately and assume responsibility from the incumbent Contractor, if applicable, within 60 days after Task Order award.”  Tech Marine, the incumbent contract, explained that its transition plan exceeded the Navy’s schedule for workload turnover and that transition would be completed “well in advance of the 60–day requirement.”

In response to the protest ground, the Navy argued that it did not assign Tech Marine a strength because the transition plan was merely “reasonable and consistent with the stated evaluation criteria” and therefore not strength worthy.  Additionally, relying on GAO’s decisional law that “an agency is not required to document all ‘determinations of adequacy’ or explain why a proposal did not receive a strength, weakness, or deficiency for a particular item,” the Navy contended that it “only documented aspects of [Tech Marine]’s proposal where it found strengths, weaknesses, significant weaknesses, or deficiencies” and that it had no reason to explain why Tech Marine’s plan did not merit a strength.

GAO rejected the Navy’s position, finding that the Navy’s argument rested on a “fundamental misunderstanding” of GAO’s decisional law.  GAO explained that while agencies are not required to “prove a negative” or document “determinations of adequacy (i.e., why a proposal did not receive a strength or weakness),” when such challenges to an agency’s evaluation occur, they are subject to GAO’s review.  Stated differently:

[W]hen a protester raises a challenge regarding why a proposal was not assigned a strength or weakness, we continue to review whether an agency’s explanation or documentation – contemporaneous or otherwise – demonstrates that the evaluation was reasonable and consistent with the stated evaluation criteria.

The distinction between GAO’s finding in Tech Marine and its reasoning in the “prove a negative” cases appears to rest on the phrase “contemporaneous or otherwise,” which GAO used twice in Tech Marine.  Agencies must justify their evaluation decision at some point, even if that occurs through post-protest explanations.  (GAO noted that it affords greater weight to contemporaneous materials.) 

Even when afforded the opportunity to provide post-protest explanations of its evaluation, the Navy did not offer any justification supporting its evaluation of Tech Marine’s transition plan.  This allowed GAO to find the Navy’s evaluation (and source selection decision) inadequate and insufficiently documented.This decision presents a few takeaways for would-be protesters.  First, GAO will likely be taking a closer look at the “failure to award a strength” arguments and ensuring that agencies reasonably adhere to solicitation evaluation criteria.  Second, an agency’s lack of contemporaneous documentation will not automatically render the selection decision unreasonable.  GAO appears amenable to some post-hoc gap filling, provided the later-in-time justification is consistent with the contemporaneous record.  Finally, incumbents should take full advantage of the benefits offered by their incumbent status including with regard to accelerated transition schedule and risk reduction.  In Tech Marine, GAO rejected the Navy’s attempt to limit consideration of Tech Marine’s incumbent status to the past performance factor and noted that Tech Marine’s incumbent work could be considered as part of another evaluation criterion.

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Photo of Amy Laderberg O'Sullivan Amy Laderberg O'Sullivan

Amy Laderberg O’Sullivan is a partner in the firm’s Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and former chair of the firm’s Diversity Council. Her practice involves a mix of litigation, transactional work, investigations, and

Amy Laderberg O’Sullivan is a partner in the firm’s Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and former chair of the firm’s Diversity Council. Her practice involves a mix of litigation, transactional work, investigations, and counseling for corporate clients of all sizes and levels of experience as government contractors. On the litigation side, she has represented corporate clients in bid protests (agency level, GAO, ODRA, Court of Federal Claims, Court of Appeals for the Federal Circuit, as well as state and local bid protests in numerous jurisdictions), size and status protests before the U.S. Small Business Administration, claims litigation before the various Boards of Contract Appeals, Defense Base Act claims litigation at the Administrative Law Judge and Benefits Review Board levels, civil and criminal investigations, and she has been involved in complex commercial litigation.

Photo of John E. McCarthy Jr. John E. McCarthy Jr.

John E. McCarthy, Jr. is a partner in the Washington, D.C. office of Crowell & Moring and member of the firm’s Government Contracts Group. John has spent more than thirty years litigating all forms of government contracts cases for both large and small…

John E. McCarthy, Jr. is a partner in the Washington, D.C. office of Crowell & Moring and member of the firm’s Government Contracts Group. John has spent more than thirty years litigating all forms of government contracts cases for both large and small government contractors, with a particular emphasis on bid protests. Because of John’s strong engineering background, he has particular experience in technology related issues, including litigation regarding complex technology and data rights, patent and other intellectual property issues.

Photo of Cherie Owen Cherie Owen

Cherie Owen is a senior counsel in the Government Contracts group. Cherie counsels and represents clients in a wide array of government contracts issues, with a focus on bid protests at the United States Government Accountability Office (GAO) and the United States Court…

Cherie Owen is a senior counsel in the Government Contracts group. Cherie counsels and represents clients in a wide array of government contracts issues, with a focus on bid protests at the United States Government Accountability Office (GAO) and the United States Court of Federal Claims. As a former GAO bid protest hearing officer, she resolved some of the most challenging bid protests on procurements ranging from thousands to billions of dollars involving solicitation challenges, proposal evaluation challenges, organizational conflicts of interest, Procurement Integrity Act violations, affirmative responsibility determinations, the conduct of discussions, and competitive range determinations. In this role, Cherie held numerous bid protest hearings. At GAO she handled more than 600 protests and issued more than 500 decisions.

Photo of Zachary Schroeder Zachary Schroeder

Zachary Schroeder is an associate in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group.

Zach represents contractors in both litigation and counseling matters. His practice focuses on representing contractors in bid protests before the Government Accountability Office…

Zachary Schroeder is an associate in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group.

Zach represents contractors in both litigation and counseling matters. His practice focuses on representing contractors in bid protests before the Government Accountability Office (GAO), the U.S. Court of Federal Claims, and the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition (ODRA). His practice also includes federal regulatory and ethics compliance, as well as various aspects of state and local procurement law, including representing contractors in size protests and affiliation matters. In the transactional context, Zach has performed government contracts diligence for government contractors in a range of industries.