The protester argued that the agency applied unstated evaluation criteria, ignored proposal contents, and unreasonably credited the awardee's proposal with confidence-raising findings that lacked support in the record. GAO largely agreed, sustaining the protest because several of the agency's evaluation conclusions were untethered from the solicitation's criteria and the proposals' actual contents.
N&S Property Services, LLC, GAO, B-423852.2; B-423852.3
- Background - The Department of Homeland Security, Immigration and Customs Enforcement issued a solicitation for facility operations and maintenance services. After initially awarding the contract to the awardee and then taking corrective action in response to an earlier protest, the agency reevaluated proposals and again selected the awardee. The protester filed this protest challenging the agency's evaluation of both its own and the awardee's technical proposals.
- Building Operating Plan - The protester argued the agency applied unstated criteria and misread its proposal when assigning a "lowers confidence" finding to its building operating plan (BOP) approach. GAO agreed. The solicitation did not require offerors to submit a draft BOP or outline of components—it was a deliverable to be developed after award in coordination with the agency. GAO also found the agency unreasonably criticized the proposal as "vague" for using the word "coordination" (the very word used in the PWS) and "would" (used appropriately in conditional sentences). The "redlines" the agency flagged were simply revision markings required by the solicitation amendments. Finally, the agency improperly faulted the protester for not providing "implementation history," which was not a stated evaluation criterion.
- Page Limits - The protester argued the agency unreasonably included its introduction and table of contents within the 25-page technical proposal limit, causing the agency to exclude content addressing weekly progress reports. GAO denied this challenge. The solicitation unambiguously imposed a 25-page limit, including the cover sheet, and offerors exceeding page limits assume the risk that the agency will not consider excess pages.
- Awardee's Equipment Inventory Evaluation - The protester challenged the agency's finding that the awardee's equipment inventory approach "raised confidence" based on its proposed computerized maintenance management system. GAO agreed the finding was unsupported. The agency apparently misidentified which system the awardee actually proposed, and the record did not explain how the claimed cost savings would benefit the government under a hybrid fixed-price/time-and-materials contract. Critically, the agency failed to meaningfully respond to these specific challenges, which GAO treated as effectively conceding the arguments.
- Awardee's Tours Evaluation - The protester argued the agency arbitrarily upgraded its assessment of the awardee's tours approach from "some confidence" to "raises confidence" during the reevaluation, despite making identical underlying findings. GAO agreed. When the same evaluators reach contradictory conclusions about the same proposal, the agency must reconcile or explain the differences. Here, the agency offered no explanation, and the cited "attention to detail outlined within the scheduled tours reporting tool" had no apparent basis in the awardee's proposal, which did not even describe such a tool.
- Competitive Prejudice - The agency argued the protester was not prejudiced because overall ratings did not change. GAO rejected this argument, noting the source selection authority specifically relied on the flawed BOP findings to conclude the protester's proposal presented "high performance risk" justifying a price premium for the awardee. Because GAO resolves doubts about prejudice in favor of the protester, and the price/technical tradeoff might have come out differently absent the errors, prejudice was established.
The protester is represented by Aron C. Beezley, Nathaniel J. Greeson, and Elizabeth A. Brown of Bradley Arant Boult Cummings LLP. The government is represented by Andrea A. Nwachukwu of the Department of Homeland Security. GAO attorneys Uri R. Yoo and Alexander O. Levine participated in the decision.