Many contractors, especially new entrants to the federal marketplace, often perceive the proposal evaluation process as a black box into which there is very little visibility. Indeed, bid protests further this perception because once a protest is filed, the parties have no insight into what’s going on under the cone of silence required for the protection of sensitive commercial information. Then, if an agency decides to implement a corrective action, there’s precious little information about why the action was taken, much less whether the action actually made a difference.

A recent bid protest decision peels back some of these layers and offers insight into how corrective actions can be handled. See SRS Critical Infrastructure Security, LLC, B-4185.9, B-418510.10; B-418510.11 (May 9, 2023). This decision arose out of a Department of Energy (“DOE”) request for proposals for the provision of security services at DOE’s Savannah River site. Decision at 1. The contract was to be awarded to the offeror whose proposal offered the best value to the Government based on the evaluation of four factors including:  technical approach; key personnel and organization; past performance; and price and fee. Id. at 2.

Over the four-year course of the procurement, there were three rounds of protests, the third of which was the subject of this decision. SRS Critical Infrastructure Security, LLC (“SCIS”) was the awardee initially and again after a corrective action was taken following the first protest. Following the second award decision, one of SCIS’s competitors, Centerra, protested the evaluation decision-making. In response, DOE undertook a second corrective action. Id. at 3.

The protest decision doesn’t state what the offerors did or did not know about what was going on in the background once the corrective action was initiated; however, here’s what we know now. DOE chose to reevaluate the proposals, assigned a new Contracting Officer, a new Source Selection Authority (“SSA”) and appointed a new evaluation board to review the proposals. Id. The new Contracting Officer reviewed the preceding evaluation and decided to use it to establish a competitive range consisting of the three top offerors based on those earlier evaluations. Then, the Contracting Officer opened discussions and called for the submission of new final proposal revisions (“FPRs”). The FPRs were passed along to the new evaluation panel and, following its review, the SSA awarded the contract to Centerra. Id.

Obviously, SCIS was disappointed and filed the protest that led to the decision I’m writing about today. The decision suggests that there were significant differences between the evaluations on the second go-round compared with the findings of the newly constituted evaluation team on the third review. One of SCIS’s protest grounds asserted that the award should be set aside because there was no justification in the record for the changed evaluation. GAO rejected that argument because the need to justify a changed evaluation generally only exists when the same team reaches a materially different outcome based on substantially similar proposals. Because the corrective action evaluation was performed by an entirely new team, then, according to GAO, it should come as no surprise that a new team might reach a different conclusion based on both objective and subjective considerations. See generally Decision at 4-6 (discussing in detail the arguments and decision on this issue much more effectively than my oversimplified summary).

Now we come to the point I find interesting about this decision. Whether to file a bid protest is a tough decision. The contractor has to balance the financial costs and the potential for annoying a customer against the likelihood that you’ll prevail in the protest. Decisions that sustain protests or agency decisions to take a corrective action usually fall in the “win” column. However, a win often results in a do-over. In my more cynical moments, I tell clients that a winning protest often leads to the same result—the only difference being that they didn’t just do you wrong, they did you wrong more effectively.

That wasn’t the case here. DOE decided it would give the prospective contractors a fresh look and appointed a new team—and they made a different call. Setting aside whether the new team “got it right,” this is a clear example where winning the bid protest won both the battle and the war.