The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series.  In this series, Crowell’s Government Contracts Practice will keep you up to date with a summary of one of the most notable bid protest sustain decisions each month.  Below, Crowell Consultant (and former GAO Bid Protest Hearing Officer) Cherie Owen discusses GAO’s decision in Anika Sys., Inc., B-422681.5, B-422681.6, Apr. 8, 2025, which found a technical evaluation unreasonable where it showed evidence of disparate treatment and imposed an unstated requirement for solutions to be “innovative and creative.”

The case involved a procurement by the Department of Homeland Security (DHS) to provide support services to the United States Citizenship and Immigration Services (USCIS) Office of the Chief Data Officer.  The work would involve services in connection with USCIS’ Data Strategy and would revolve around the agency’s data.  In connection with this work, offerors were to—among other things—discuss how they would “identify potential visualizations to provide leadership visibility into the data and aid with decision-making.”  In evaluating proposals, the agency criticized Anika (the incumbent contractor) because USCIS “expected more innovation or creativity in expanding current government capabilities.”  Anika challenged this conclusion, noting that innovation and creativity were not solicitation requirements.  The agency attempted to argue that the solicitation’s reference to “potential” visualizations implicitly meant that offerors were required to propose “new” visualizations—i.e., visualizations not currently in use under the incumbent contract.  However, GAO rejected this argument, noting that “[s]uch an interpretation, besides being illogical, is unsupported by the context” in which the phrase was used.  GAO also noted that such an interpretation would result in disparate treatment because, for non-incumbent offerors, any visualization would be “not currently in use,” while only the incumbent would be prohibited from relying on currently-in-use (and ostensibly successful) visualizations.  In any event, GAO noted that even if the agency’s interpretation were reasonable (it wasn’t), the record did not support a finding that Anika’s proposal relied only on “existing” visualizations – to the contrary, Anika demonstrated multiple visualizations that “have not been executed before and therefore are not ‘existing.’”  As a result, GAO concluded that “the agency disparately evaluated proposals and unreasonably concluded that the protester’s proposal lacked innovative visualizations.”

GAO also found that the evaluation evidenced multiple other instances of disparate treatment.  For example, the agency complained that Anika’s use of the word “we” when describing tasks to be performed was ambiguous with respect to who would be performing the task.  However, GAO noted that the awardee’s proposal used the same language; thus, to the extent the agency was “confused about who Anika meant when it said ‘we,’” the agency “cannot credibly claim that [the awardee’s] proposal offered greater clarity.”  Finally, GAO concluded that the agency unreasonably deprived Anika of a strength finding where the agency’s justification for not assigning a strength was contrary to the record. 

Although agency evaluators are afforded a wide degree of discretion in assessing proposals, the Anika Systems decision demonstrates that this discretion is not unlimited.  Agency evaluations are required to be consistent with the terms of the solicitation, consistent with the contents of the offerors’ proposals, and cannot engage in unequal or disparate treatment.  Where the agency violates these requirements, GAO may sustain a protest of the award with instructions for the agency to “re-do” the evaluation in a reasonable manner.