Bid Protest Spotlight: Conflicts, Evaluations, Materiality
This month’s Bid Protest Roundup focuses on three recent protests from the U.S. Government Accountability Office (GAO). The first protest involves an organizational conflict of interest, the second pertains to oral evaluations, and the third involves material misrepresentations.
DirectViz Solutions, LLC, B-423366; B-423366.3; B-423366.4, June 11, 2025
In DirectViz Solutions, LLC, the protester challenged the issuance of an order to Peraton, Inc. under a task order proposal request for cybersecurity IT support services for the Army’s Global Cyber Center (GCC). The protest was largely based on Peraton’s purported organizational conflicts of interest (OCIs) and the agency’s evaluation of these conflicts.
The protester asserted that Peraton had an unmitigated impaired objectivity OCI. As the name would suggest, an impaired objectivity OCI comes about when a contractor’s competing interests impact its ability to render impartial advice. In this case, the protester claimed that Peraton had an impaired objectivity OCI due to its work under a separate task order awarded to it under the General Service Administration’s One Acquisition Solution for Integrated Services (OASIS) multiple-award indefinite delivery/indefinite quantity (IDIQ). Under this separate task order, Peraton was responsible for providing cyberspace operations support services for U.S. Army Cyber Command (ARCYBER), ARCYBER subordinate components, other cyber mission partners, and service component partners of U.S. Cyber Command (USCYBERCOM). The protester claimed that ARCYBER’s subordinate components included GCC, and Peraton’s competing roles under the two task orders presented a conflict of interest.
The GAO agreed that Peraton’s roles in these two task orders were, in fact, competing and might impair Peraton’s objectivity. Furthermore, it highlighted multiple instances in which Peraton would have had the opportunity to craft procedures and policies under the ARCYBER task order that would allow it to tailor those policies to Peraton’s capabilities downstream for its work on the GCC task order. Having found that an impaired objectivity OCI existed, the GAO moved on to addressing the agency’s OCI investigation.
The GAO found that the contracting officer’s OCI investigation was inadequate, even though the contracting officer had performed two rounds of investigation. Rather than engaging in an independent analysis of the respective performance work statements (PWSs) for the two relevant task orders, the GAO found that the contracting officer had simply relied on: (1) statements made by the GCC contracting officer’s representative (COR) and an ARCYBER acquisition official; (2) Peraton's statements regarding the work it was performing even where those statements conflicted with the performance work statements; and (3) the idea that any conflict would be mitigated by the involvement of government personnel providing input, essentially insulating Peraton’s ARCYBER work from Peraton’s GCC work.
The GAO found that the statements by the COR and the ARCYBER acquisition official were conclusory and lacked PWS-specific analysis. As a result, the contracting officer’s reliance on these statements was unreasonable. Next, the GAO similarly found that the contracting officer’s reliance on Peraton’s statements that conflicted with the PWSs was also unreasonable. Lastly, the GAO did not buy the agency’s argument that the advice the government received from Peraton upstream would not impact the work due to the input of agency officials because the fact that agency officials need to approve recommendations from the contractor does not inherently mitigate the risk that the advice received from the contractor could be biased.
For these reasons, the protest was sustained.
Takeaways: While a documented contracting officer determination that there is no OCI (or of a sufficiently mitigated OCI) is entitled to significant deference, that discretion is not unfettered. The GAO will occasionally sustain a protest when, as here, there are hard facts establishing: (1) a conflict with the contracting officer’s conclusions, and (2) a conclusory or factually unsupported OCI investigation. Indeed, although it can be challenging to establish an OCI, it is possible when a protester can successfully point to overlapping scopes of work where an awardee would have the ability to impact its own work downstream (the more examples, the better). Additionally, even where a contracting officer undertakes multiple OCI investigations, the door is not closed on finding that the investigations were inadequate. This holding establishes that the contracting officer cannot simply rely on representations of an awardee or agency personnel alone and ignore the actual language of overlapping scopes of work when conducting an impaired objectivity OCI investigation.
SOS International, LLC, B.423366.2, June 11, 2025
In SOS International, LLC, the protester also challenged the issuance of the same GCC task order to Peraton, Inc. as DirectViz Solutions, LLC. Here, the protester’s grounds were the agency’s evaluation of its oral presentation and, like DirectViz Solutions, LLC, Peraton’s OCI.
The protester asserted that the agency fell short with respect to the oral presentation in three ways: (1) the agency did not conduct presentations as required by the solicitation; (2) it criticized the protester’s solutions in an unreasonable manner even though they were technically sound; and (3) the agency failed to adequately document the oral presentations because the only record was the notes of the evaluators (which were purportedly illegible in some cases). The GAO rejected each of these assertions.
Regarding the first two assertions, the GAO noted that in reviewing the record, it found no reason to question the agency’s evaluation of the protester’s oral presentation. Regarding the technical evaluation aspect, the GAO stated that when it reviews a protest that challenges a technical evaluation, it does not perform an independent evaluation of proposals. Instead, it reviews the agency’s evaluation to ensure its consistency with the solicitation’s terms and any applicable law. Here, in reviewing the evaluation it found no issues with the agency’s evaluation of the oral presentation.
Lastly, as for the claim that documentation of the oral presentation was inadequate because the only record of the presentation was the evaluators’ notes, the protester relied on a line of cases from FAR Part 15 procurements to assert that more rigorous documentation was required than simple note taking. However, the GAO pointed out that the task order at issue here was not a negotiated procurement, rather, it was a task order competition under FAR Part 16.5, which was intended to be a more streamlined process that required far less rigorous documentation. Additionally, the solicitation explicitly said that the oral presentations may or may not be recorded by the government. As a result, this argument was rejected, and the protest ground was denied.
The protester was given a rating of “some confidence” for its oral presentation. The solicitation noted that any offeror with a rating of “low confidence” or “some confidence” on its oral presentation would not be considered for award. As a result, the GAO refused to consider the protester’s other arguments, including the OCI protest ground sustained in the protest of DirectViz Solutions, LLC.
Takeaways: Documentation of an oral presentation under a FAR Part 16.5 task order will not be treated the same as a FAR Part 15 negotiated procurement in that the documentation requirement is less rigorous for a FAR Part 16.5 task order. Even if a protester has a meritorious protest ground, such as the impaired objectivity OCI in this case, if a protester is not in line for award for a separate reason, then its protest will still be denied for lack of prejudice.
Quantum Research International, Inc., B-423237.2-3, June 17, 2025
In Quantum Research International, Inc., the protester challenged a task order issued by the Department of the Army for logistics and other services in support of the agency’s Rapid Capabilities and Critical Technologies Office (RCCTO). Here, the protester alleged that the awardee’s proposal contained material misrepresentations. Even in assuming that these purported material misrepresentations were, in fact, misrepresentations, the GAO denied this protest ground because it determined that it did not have a material effect on the evaluation.
One of the evaluation criteria was past performance, and the protester alleged that the awardee, PeopleTec, misrepresented its role on one of the five efforts it had cited for past performance (this prior effort was called “MATCH SEC”). This allegation formed the basis for a prior protest of this same procurement and resulted in corrective action requiring the agency to look further into PeopleTec’s role on MATCH SEC. Both protester and awardee hotly contested the underlying facts of whether PeopleTec misrepresented its role on MATCH SEC.
The GAO did not make a determination whether there was a misrepresentation. Instead it found that, even if PeopleTec misrepresented what it did on MATCH SEC, such misrepresentations were not material for the following reasons: (1) the relevancy rating of “somewhat relevant” assigned to PeopleTec for MATCH SEC was the same as PeopleTec’s overall relevancy rating for past performance; (2) MATCH SEC was similar to two other references that were for task orders under $20 million in various respects; (3) MATCH SEC was less relevant than two larger task order references that were over $20 million dollars and classified as “relevant” because they contained services more similar to the PWS at issue; and (4) other task order references were sufficient to establish relevant experience required under the PWS, essentially rendering MATCH SEC experience duplicative.
For these reasons, the GAO determined that the consideration of MATCH SEC likely did not have an impact on the overall relevancy rating assigned to PeopleTec’s proposal and, thus, could not be a material misrepresentation (regardless of whether the representation was true or false). The GAO denied the protest.
Takeaways: Establishing a misrepresentation in an awardee’s proposal is not sufficient to sustain a protest. Even where evaluators considered and accepted the truth of a potential misrepresentation, it will generally be considered nonprejudicial if it did not improve the evaluation outcome (such as by raising the adjectival rating).
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