A recent Government Accountability Office (GAO) bid protest decision highlights a recurring issue in federal procurements: Agencies often take corrective action, but reevaluation errors can still lead to a sustained protest. In N&S Property Services, LLC, GAO sustained a second protest after corrective action, finding that the agency’s evaluation was unreasonable, poorly documented, and inconsistent with the solicitation.
The decision offers important guidance for government contractors and contracting officials alike on how GAO reviews technical evaluations, confidence ratings, and best-value tradeoff decisions — especially following corrective action.
Notably, the authors of this article* successfully represented the protester in this matter, and the outcome serves as a reminder that effective protest advocacy often depends on detailed command of the record and strategic issue development across multiple rounds of litigation.
Link to Background: DHS ICE Operations and Maintenance Procurement Background: DHS ICE Operations and Maintenance Procurement
The U.S. Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE) issued an 8(a) set-aside solicitation for facility operations and maintenance services supporting ICE’s Office of Firearms & Training Program at Fort Benning, Georgia. The solicitation contemplated a best-value tradeoff under three evaluation factors: technical capability and approach, key personnel, and price. The solicitation stated that the non-price factors were significantly more important than price.
After receiving final revised proposals from four offerors, ICE awarded the contract to KCorp Reliance Company, Inc. N&S filed a GAO protest, and ICE took voluntary corrective action to reevaluate all proposals. Following reevaluation, ICE again awarded to KCorp — even though KCorp proposed a significantly higher price than N&S.
N&S protested again, and GAO sustained the protest.
Link to What GAO Found: Key Holdings in the GAO Protest Decision What GAO Found: Key Holdings in the GAO Protest Decision
GAO sustained the protest based on several evaluation errors that affected the agency’s best-value decision. Key holdings included ICE’s findings regarding the protester’s technical approach were unreasonable and not supported by either the solicitation or the proposal; two new “raises confidence” findings added to KCorp’s proposal during reevaluation were inadequately documented and not meaningfully defended in the agency report; and the source selection authority relied on flawed technical findings in the price/technical tradeoff, establishing competitive prejudice.
- Unstated Evaluation Criteria
GAO’s most detailed analysis focused on ICE’s evaluation of the protester’s proposal under the Building Operating Plan (BOP) requirement. The technical evaluation team assigned a “lowers confidence” finding based on three alleged issues: (1) the proposal was supposedly unclear whether it provided a BOP or merely an outline; (2) the proposal was supposedly “vague” due to words like “coordination” and “would;” and (3) the proposal supposedly appeared to be a draft because of redline markings.
GAO rejected each rationale. The solicitation did not require submission of a BOP at all — the BOP was a post-award deliverable — so ICE improperly applied an unstated evaluation criterion. GAO also found it unreasonable to fault the protester for using terminology (“coordination”) drawn directly from the solicitation documents or for using conditional language (“would”) to describe future performance scenarios. Finally, GAO held that the redline markings reflected compliance with amendment instructions requiring offerors to identify proposal changes, not a lack of completeness. - Reevaluation After Corrective Action
The protester also challenged two new “raises confidence” findings added during ICE’s reevaluation of KCorp’s unchanged proposal. One credited KCorp’s recommended software system as generating cost savings, even though the record suggested confusion about the incumbent platform and the rationale did not align with the contract’s pricing structure. Another credited KCorp for a scheduled tours reporting tool that did not appear in the cited portion of the proposal. GAO sustained these challenges because ICE did not meaningfully rebut them, relying instead on general assertions that reevaluation differences were permissible — effectively conceding the issues. - Competitive Prejudice and the Best-Value Tradeoff
GAO also found competitive prejudice because the source selection authority relied on the flawed technical findings in the best-value tradeoff decision. Given the protester’s significantly lower price, GAO concluded there was a reasonable possibility the award decision could have changed absent the evaluation errors.
The decision reinforces that GAO will sustain a protest where the record shows the tradeoff analysis was materially influenced by unsupported technical conclusions.
Link to The Value of Experienced GAO Bid Protest Counsel The Value of Experienced GAO Bid Protest Counsel
The outcome in this protest also reflects the practical reality that successful GAO protests often turn on close review of the contemporaneous evaluation record, identification of internal inconsistencies, and careful development of prejudice arguments.
Here, the authors successfully represented the protester through multiple rounds of protest activity, including a protest that resulted in corrective action and a second protest challenging the agency’s reevaluation. The GAO’s decision underscores how agencies can repeat or compound evaluation errors during corrective action — and why contractors should remain vigilant even after an agency agrees to reevaluate proposals.
More broadly, the case serves as a reminder that retaining experienced bid protest counsel early can be critical, particularly given the compressed GAO protest timelines and the strategic decisions required in framing issues, building the record, and sustaining arguments through the agency report and briefing process.
Link to Practical Takeaways for Government Contractors Practical Takeaways for Government Contractors
The GAO’s decision in this case provides several key lessons for contractors considering a protest.
First, agencies may not penalize offerors for failing to provide documents or information that the solicitation does not require. Evaluation findings based on unstated criteria remain one of the most common and successful protest grounds.
Second, contractors should also pay close attention to corrective action reevaluations. Corrective action does not necessarily resolve evaluation flaws, and reevaluations often create new inconsistencies or documentation gaps.
Finally, this case reinforces that GAO expects agencies to provide a clear, contemporaneous record supporting their conclusions. Unsupported technical findings and poorly explained strengths or weaknesses can undermine the entire best-value award decision.
Link to Conclusion Conclusion
GAO’s decision in N&S Property Services, LLC is a clear reminder that corrective action is not a safe harbor. When agencies reevaluate proposals, they must still follow the solicitation, document their conclusions, and ensure that technical ratings and best-value tradeoffs are supported by the record.
For government contractors, GAO’s decision underscores the importance of carefully analyzing evaluation findings — especially when an agency relies on vague criticisms, unstated requirements, or inconsistent reevaluation results. And as this case illustrates, experienced protest counsel can play a decisive role in identifying evaluation errors and persuasively presenting those issues to GAO within the tight procedural deadlines of the bid protest process.
If you have any questions about the foregoing or require assistance, please do not hesitate to contact Aron Beezley, Nathaniel Greeson, or Elizabeth Brown.
*As noted above, Aron Beezley, Nathaniel Greeson, and Elizabeth Brown represented the protester in this case.