“Better Late Than Never?” Not Really. Two Recent GAO Sustains Highlight the Importance of Contemporaneous Documentation

“Now or later?”  As individuals, we are constantly asked to prioritize our time, identifying the tasks that need to be done NOW versus those that can be put off until later.  In the bid protest context, the question arises as well when agencies seek to “fill in the gaps” in the administrative record with additional detail, a practice GAO has permitted so long as those details are consistent with the contemporaneous record.  But, as highlighted by two recent GAO sustain decisions, when agencies attempt to perform new analyses “later” in response to a protest, those efforts are often unsuccessful. 

In Deloitte Consulting, LLP; Softrams, LLC, B-421801.2 et al., Jan. 30, 2024, GAO considered claims that the Library of Congress (LOC) engaged in unequal treatment in its assignment of strengths to the awardees.  In responding to the arguments, LOC did not dispute that some offerors were assigned strengths while others were not, despite submitting substantively indistinguishable offerings.  Rather, the agency’s defense relied on positions that were never documented in—and sometimes inconsistent with—the contemporaneous evaluation record.  For example, LOC argued that one offeror was not assigned a strength because the advantage it offered—reducing Amazon Web Services costs—would not necessarily provide a benefit to the agency.  With respect to a second strength related to Project Management Body of Knowledge (PMBOK) best practices, LOC again attempted to explain its basis for assigning a strength to some offerors, but not others.  In doing so, LOC took positions in the protest that were not borne out in the contemporaneous record, arguing both that PMBOK best practices were required by the solicitation (and therefore met, but did not exceed, requirements) and that, even if the evaluation was disparate, the differences were meaningless because the PMBOK strength assigned to other offerors was unimportant and did not have a significant impact on the award decision.  Despite acknowledging that it had assigned a strength to one offeror but not another for “backlog grooming” (a process for analyzing, prioritizing, and updating a backlog of tasks or work), LOC similarly argued that the strength would not have had an impact on the ultimate award decision.  GAO rejected the agency’s attempt to adopt new positions in the midst of the protest process, emphasizing that these “post hoc” arguments failed to justify LOC’s assignment of strengths to some offerors but not others and were not supported in the contemporaneous record.   

Two days after its Deloitte decision, GAO issued another sustain that again rejected an agency’s offer of post hoc positions not evident from the contemporaneous record.  In Conti Fed. Servs., LLC, B-422162 et al., Feb. 1, 2024, a disappointed offeror protested the Army Corps of Engineers’ award of a contract for environmental remediation services, challenging the agency’s cost realism analysis.  In evaluating Conti’s proposed labor rates, the Army made upward adjustments to Conti’s most probable cost using the labor rate of a different position—one requiring higher qualifications and more duties.  The agency contended that rates for the relevant positions had been similar in prior procurements—a position that was not included anywhere in the contemporaneous record—and also attempted to submit a re-do of its cost realism evaluation in response to the protest, offering new calculations and a different most probable cost.  But GAO determined that performing this analysis in response to a protest is no substitute for performing it (and documenting it) as part of the contemporaneous evaluation.  As GAO noted, post hoc positions are less credible because “judgments made ‘in the heat of an adversarial process’ may not represent the fair and considered judgment of the agency.”  GAO similarly rejected the Army’s attempt to provide a post hoc recalculation of fuel charges that it had also upwardly adjusted.

This pair of GAO sustains highlights agencies’ obligation to document their judgments in the contemporaneous record or potentially face a sustained protest.  For agencies, these decisions should serve as a reminder of the old adage, “don’t put off ‘til tomorrow that which you can do today.”  For potential protesters, these decisions emphasize the importance of obtaining the procurement record to determine whether an agency’s explanations for its conclusions are consistent with the underlying evaluation documents. 

Key Takeaways

• When considering the reasonableness of an agency’s conclusions, it is imperative to look to the contemporaneous record to determine whether it supports the agency’s positions. Generally, such documents can only be viewed by protest counsel admitted to a protective order issued by GAO or the Court of Federal Claims.  This is a crucial consideration for companies deciding whether to retain outside counsel to pursue their protests.
• In pursuing a protest challenging the award of a contract, protesters should keep in mind that “failure to sufficiently document” an evaluation and selection decision can provide an independent basis for sustaining a protest. Indeed, GAO is often more receptive to arguments that a conclusion was not sufficiently documented than to arguments that the conclusion was simply unreasonable.