Wednesday, June 6, 2012


The Government Accountability Office (GAO) recently has sustained a protest on a major Central Intelligence Agency (CIA) financial services procurement.  Why?  Because the CIA held misleading discussions, failed to evaluate the proposals fairly, neglected to conduct a proper cost realism analysis and made an unreasonable source selection decision.

The CIA advised the protester during discussions that it "should" provide resumes for all proposed personnel for the lifespan of the contract.  But the agency then took the position that it was necessary only to provide resumes for the initial performance period.  GAO interpreted the word "should" as expressing a "mandate".  GAO said that the CIA's discussions were "misleading" and reiterated the rule that discussions "are required to be meaningful, equitable and not misleading."

Moreover, "agency personnel also may not engage in conduct that favors one offeror over another.  FAR 15.306(e)(1)."  "Disparate" treatment is not permitted, says GAO.

On the issue of prejudice, GAO said it is not necessary to decide what the protester would have done but for the misleading information.  A protester's "reasonable assertion of a claim that it could have improved its competitive position is sufficient to demonstrate prejudice."

Regarding cost realism, GAO said it will sustain a protest where the cost realism analysis was not thorough and well documented.  Here, GAO said the record reflects no meaningful agency consideration of the successful awardee's cost proposal.  Evaluation notes of "posed no issue" and "took no exception" were insufficient.  In short, the CIA failed to provide a reasonable basis for estimating the probable costs under the contract -- "a prerequisite to the award of very cost-reimbursement contract by the federal government."

Thus, GAO recommended reopening the record, performing a reasonable cost realism analysis, holding meaningful discussions with both offerors, providing another round of final proposals, conducting a new evaluation and making a new source selection decision.  Protester collects its fees and expenses.

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