The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series. In this series, Crowell’s Government Contracts Practice keeps you up to date with a summary of one of the most notable bid protest sustain decisions each month. Below, Crowell Consultant (and former GAO Bid Protest Hearing Officer) Cherie Owen discusses GAO’s only sustain decision of March 2026, N&S Property Services, LLC, where an agency’s technical evaluation repeatedly penalized a protester for doing precisely what the solicitation required.
N&S Property Services, LLC (N&S), a small disadvantaged business from Atlanta, Georgia, protested the award of an 8(a) set-aside contract to KCorp Reliance Company, Inc. under a Department of Homeland Security, Immigration and Customs Enforcement (ICE) solicitation for facility operations and maintenance services at Fort Benning, Georgia.
After ICE made its initial award to KCorp in August 2025, N&S protested and the agency took corrective action, agreeing to reevaluate proposals and make a new award decision. Following corrective action, ICE again selected KCorp for award and N&S protested again. N&S challenged the evaluation of its own proposal (which was “low confidence” under the technical factor), as well as the evaluation of KCorp (which received a technical rating of “some confidence”).
GAO sustained the protest, finding prejudicial evaluation errors in the evaluations of both offerors. With respect to N&S’s proposal, GAO found that ICE’s assignment of a “confidence decreaser” was across-the-board unreasonable. First, while the solicitation did not require offerors to provide a recommended building operating plan (BOP) or an outline of BOP components in their proposals at all, ICE criticized the N&S proposal because “it was difficult to understand whether the proposal included a recommended BOP or was just outlining the components of a BOP.” Since neither was required, GAO found this criticism was unreasonable and inconsistent with the solicitation. Second, the TET criticized N&S’s proposal as “vague” for using the words “coordination” and “coordinate” – even though the PWS used that very word to describe the successful contractor’s responsibilities. Third, the TET penalized N&S because its proposal appeared to be in “draft form” due to redlines, without recognizing that the solicitation expressly required offerors to use redlines to indicate changes from their earlier-submitted proposals. Finally, the TET criticized N&S for not providing more “implementation history,” discussing its past experience performing the contract requirements. However, GAO noted that the solicitation required a forward-looking discussion of technical approach, not a backward looking discussion of experience. While an offeror may choose to demonstrate its understanding and capability through past experience, an agency cannot penalize a firm for not doing so if the proposal otherwise demonstrates the required capability.
GAO also sustained the protest based on errors in the evaluation of KCorp’s proposal. During the corrective action reevaluation, the TET identified two aspects of KCorp’s proposal that “raised confidence” – findings that had not previously been identified as positive aspects of KCorp’s proposal. In responding to the protest, the agency failed to provide meaningful responses demonstrating that its conclusions were reasonable. First, with respect to equipment inventory, the evaluators misidentified which CMMS system KCorp had proposed and offered an unsupported conclusion that the recommended system would provide “significant cost savings to the Government” – a conclusion GAO found was unclear in the context of a fixed-price hybrid contract. In responding to this protest ground, the agency failed to meaningfully address N&S’s specific challenges to this finding.
Similarly, the agency’s reevaluation of KCorp’s approach to the “tours” requirement was also unsupported. In the reevaluation, the technical evaluators reached a different conclusion despite making the exact same factual findings as in the initial evaluation, citing “attention to detail outlined within the scheduled tours reporting tool” – even though KCorp’s proposal never mentioned such a tool. In both instances, because the agency did not substantively respond to the protester’s specific allegations, GAO treated the agency as having effectively conceded that those arguments had merit. In sustaining the protest, GAO recommended that ICE reevaluate proposals and make a new source selection decision in accordance with the solicitation.
The N&S decision is a powerful reminder that an agency’s evaluation must be anchored to the solicitation’s actual requirements and must be consistent with the contents of the offerors’ proposals. An agency cannot criticize a proposal for using the solicitation’s own language, penalize an offeror for complying with the solicitation’s formatting instructions, or demand a type of demonstration the solicitation never required. Equally important, the decision underscores that when an agency fails to meaningfully respond to specific protest allegations, it does so at its peril – GAO will treat silence as a concession. For contractors who believe their proposals have been evaluated on grounds untethered from the solicitation, N&S reaffirms that protests remain an effective tool to pursue a fair evaluation.