GAO issued three sustain decisions in June, but the Sparksoft Corporation decision stands out for its discussion of prejudice.  In Sparksoft, the Centers for Medicare and Medicaid Services (CMS) sought to procure supplemental security testing for the agency’s Center for Clinical Standards and Quality (CCSQ).  CMS evaluated Sparksoft and the eventual awardee, TSG, as follows:

            Sparksoft protested, challenging numerous areas of the agency’s evaluation, including challenges under both of the non-cost evaluation factors.  GAO walked through challenge after challenge, rejecting each one.  However,

GAO did find merit in Sparksoft’s challenge to one discrete area of the evaluation: the assignment of a strength for the Systems Security Officer’s (SSO) “certified information systems security professional (CISSP) certification.”  The agency assessed TSG a positive finding because its SSO “is a Certified Information Systems Security Professional (CISSP) which is the highest level security certification,” which the evaluators concluded would allow the SSO to “be more productive faster and support meeting important schedule milestones and priorities faster”; “should provide higher quality deliverables”; and “should require less Government oversight, training and guidance.” In the award decision, the SSA specifically mentioned the TSG SSO’s CISSP certification, concluding that certification was a feature “not included in Sparksoft’s proposal.” 

            However, Sparksoft’s proposal did note that its SSO also held a CISSP certification.  In response to the protest, the agency conceded that it had overlooked this aspect of Sparksoft’s proposal.  However, given the multiple positive discriminators in TSG’s proposal, and the fact that it had received higher ratings under both non-cost factors, the agency argued that this error was nonprejudicial because it would not have changed the outcome of the award decision.  GAO has long held that competitive prejudice is an essential element of every viable protest, and GAO will not sustain a protest unless the protester demonstrates that, but for the agency’s improper action, it would have had a substantial chance of receiving the award. 

            GAO disagreed.  In making the award, the SSA had noted the price differential between TSG’s higher-rated, more expensive proposal and Sparksoft’s lower-rated, less expensive one, but concluded that TSG’s “distinguishing positive features” justified its price premium.  These positive features included TSG’s SSO’s CISSP certification.  Although the agency claimed during the protest that the SSA would have made the same decision even without the CISSP certification, GAO declined to consider this “hypothetical” do-over.  Instead, GAO concluded that it was “unclear” whether Sparksoft’s proposal would have received the same “high confidence” rating as TSG under the key personnel factor, or whether the SSA would have still concluded that TSG’s key personnel had “more impactful and comprehensive positive benefits than Sparksoft.”  Similarly, it was unclear whether the SSA would have still concluded that TSG’s positive features under the corporate experience factor alone justified the “significant price premium” tradeoff.  As a result, GAO sustained the protest, recommending that the agency reevaluate proposals to correct this error and make a new award decision.  

            The Sparksoft decision offers an important reminder that it’s important to demonstrate prejudice in order to win a protest.  In addition, as this decision demonstrates, a single evaluation flaw may be all that is needed to show prejudice and obtain a sustained decision.  However, potential protesters also need to consider what relief they’re likely to receive when a protest is sustained on a single basis—here, GAO’s recommendation was as discrete as the sustained protest ground, requiring the agency to merely correct the evaluation of the two offerors’ CISSP certification and make a new award decision.  It remains to be seen whether this change will impact the ultimate procurement outcome.

We would like to thank Cherie J. Owen, Consultant, for her contribution to this blog post.