Enviremedial Services, Inc.

Decision

Matter of: Enviremedial Services, Inc.

File: B-423552; B-423552.2

Date: August 28, 2025

DIGEST

1. Protest alleging that awardee’s pricing is unbalanced is dismissed where the protester fails to credibly allege that one or more of the awardee’s prices was overstated.

2. Protest challenging agency’s past performance evaluation is sustained where aspects of the agency’s relevancy evaluation were unreasonable or not sufficiently documented.

3. Protest challenging agency’s best‑value tradeoff is sustained where the tradeoff failed to adequately compare proposals and was based on an unreasonable and inadequately documented past performance evaluation.

Enviremedial Services, Inc. (ESI), a small business of Oceanside, California, protests the award of a contract to BryMak & Associates, Inc., a small business of Clarksville, Tennessee, under request for proposals (RFP) No. W912HP25R1000, issued by the Department of the Army, Corps of Engineers (Corps), for preventative maintenance, repair work, and other facilities services at locations across Georgia, North Carolina, and South Carolina. The protester challenges the agency’s evaluation of the awardee’s past performance and price as well as the resulting source selection decision.

We sustain the protest.

BACKGROUND

On February 10, 2025, the Corps issued the RFP as a small business set‑aside in accordance with the procedures of Federal Acquisition Regulation (FAR) Part 15, seeking proposals to provide preventative maintenance, repair work, and other facilities services at 18 sites in Georgia, North Carolina, and South Carolina in support of the United States Army Reserve’s 81st Readiness Division. Agency Report (AR), Tab 3, RFP at 1, 3; AR, Tab 9, Performance Work Statement at 1, 6, 157.[1] The solicitation contemplated the award of a fixed‑price, indefinite-delivery, indefinite-quantity contract for a 12‑month base period and four 12‑month option periods. RFP at 3; Memorandum of Law (MOL) at 1.

The solicitation provided for the contract to be awarded to the offeror whose proposal represented the best value to the agency, considering price and two non-price factors, understanding of the work and past performance. RFP at 70. The solicitation stated that, for the purposes of the best-value tradeoff, the non-price factors, when combined, were “approximately equal in importance to price.” Id. (emphasis removed).

The solicitation explained that such proposals “must include a narrative that explains the major or critical aspects of the work to be performed by each team member.” Id. at 71.

The agency was to evaluate proposals under the past performance factor by assessing the relevance and quality of the offerors’ past performance. Id. at 74‑76. The RFP instructed offerors to submit a minimum of three, but no more than five, relevant past performance contracts. Id. at 74. The RFP mandated that a past performance reference would only be considered relevant if it was awarded to an offeror, or its team member, as a prime contractor.[2] Id. at 72.

The solicitation stated that each submitted contract would be evaluated to confirm its relevancy. Id. at 74. In evaluating relevance, the agency was to consider how similar the contract’s service, complexity, dollar value, contract type, use of key personnel, and extent of subcontracting or teaming were to the instant requirement. Id. at 75. The agency was to assign each proposal a relevancy rating of very relevant, relevant, somewhat relevant, or not relevant.[3] Id. at 76.

The solicitation provided that the agency would then perform a past performance confidence assessment considering “how well the contractor performed” on its referenced contracts. Id. Based on this assessment, the agency would assign a past performance confidence rating of substantial confidence, satisfactory confidence, limited confidence, no confidence, or unknown confidence. Id. The evaluation was to be a “subjective assessment . . . based on consideration of all relevant facts and circumstances.” Id. at 75. Notably, the RFP stated that:

more consideration will be given to an Offeror that demonstrates greater past performance experience in work involving:

(i) performance of preventative maintenance and repair work via service calls.

(ii) performance among dispersed multiple sites, buildings, and/or facilities[.]

(iii) performance spanning a large geographical area.

(iv) the same type equipment identified in Section C 1502000, Paragraph 1.0 General Information.

Id. at 74.

The RFP also provided that the agency would evaluate proposed pricing for completeness, balance, and reasonableness in accordance with FAR 15.404-1. Id. at 76.

The agency received four timely proposals by the solicitation’s March 13 closing date, including from BryMak and ESI. COS at 1; RFP at 1. The agency evaluated BryMak’s and ESI’s proposals as follows:

AR, Tab 7, Source Selection Evaluation Board (SSEB) Report at 2; COS at 6.

For the understanding of the work factor, the agency evaluated BryMak’s proposal as good, identifying four strengths and two weaknesses. AR, Tab 7, SSEB Report at 6. The agency evaluated ESI’s proposal as outstanding under the understanding of the work factor with one significant strength, six strengths, and no weaknesses. Id. at 9.

In evaluating past performance, the SSEB found that ESI had submitted five very relevant past performance contracts, performed by ESI as a prime contractor, which had earned Contractor Performance Assessment Report (CPAR) ratings of mostly exceptional or very good. AR, Tab 7, SSEB Report at 10‑11. The SSEB also evaluated CPAR ratings for 15 very relevant, and one somewhat relevant, ESI contracts identified in the CPAR database. Id. The evaluators found that most of the 172 ratings from these 39 total CPARs were exceptional with the remainder including a “high percentage of very good and satisfactory ratings.”[4] Id. at 9.

For BryMak’s past performance, the agency found that the firm had submitted three very relevant contracts that BryMak had performed as a prime contractor and they reflected very good and satisfactory CPAR ratings. Id. at 6‑8. The agency also found that BryMak had submitted two very relevant contracts performed by its teaming partner, CB Facilities Solutions (CBFS), as a prime contractor, which earned exceptional CPAR and past performance questionnaire ratings. Id. The agency additionally found that these two CBFS contracts “included work by BryMak.”[5] Id. at 6. The SSEB also evaluated CPARs for additional BryMak and CBFS contracts identified in the CPAR database. Id. The evaluators found two of these contracts to be very relevant, four to be relevant, and one to be somewhat relevant, and noted that most of the corresponding CPAR ratings were satisfactory with “a high percentage of very good ratings, and one exceptional rating.” Id.

Based on the SSEB’s report and the evaluators’ price proposal analysis, the source selection authority (SSA) concluded that BryMak’s proposal presented the best value to the government. AR, Tab 8, Source Selection Decision (SSD) at 1, 9. In comparing ESI’s and BryMak’s proposals, the SSA noted that ESI’s proposal was “rated slightly higher” than BryMak’s under the understanding of the work factor and that “both proposals received the same rating” under the past performance factor. Id. at 9. In reaching the award determination, the SSA stated that ESI’s “slightly higher rating for [the understanding of the work factor] does not justify paying a price premium over Brymak’s proposal, as BryMak was assigned a ‘[g]ood’ rating.” Id.

On May 7, the Corps notified ESI of the award to BryMak. Protest exh. 1, Unsuccessful Offeror Letter. The agency provided ESI with a debriefing that concluded on May 15, and this protest followed. Protest at 3; Protest exh. 4, Enhanced Debriefing Responses.

DISCUSSION

ESI primarily contends that the agency unreasonably evaluated BryMak’s past performance. Protest at 10‑18; Comments & Supp. Protest at 4‑13. The protester also challenges the agency’s unbalanced pricing analysis and the sufficiency of the best-value tradeoff. Protest at 18-24; Comments & Supp. Protest at 19‑24. For the reasons set forth below, we sustain the protest.[6]

Unbalanced Pricing

ESI contends that the agency failed to adequately evaluate BryMak’s unbalanced pricing as required by the RFP. Protest at 18‑20 (citing RFP at 76‑77). Unbalanced pricing exists when the prices of one or more contract line items are significantly overstated, despite an acceptable total evaluated price. FAR 15.404‑1(g)(1). With respect to unbalanced pricing generally, the FAR requires that contracting officers analyze offers with separately‑priced line items or subline items, to detect unbalancing and assess the risk of any unbalanced pricing because unbalanced pricing may increase performance risk and could result in payment of unreasonably high prices. FAR 15.404‑1(g)(1) and (2). Here, ESI alleges that certain BryMak line-item prices are either overstated or understated because they are either higher or lower, respectively, than the corresponding ESI line-item prices. Id. at 19‑20.

Our Bid Protest Regulations require that protests include a detailed statement of the legal and factual grounds of protest and that the grounds be legally sufficient. 4 C.F.R. § 21.1(c)(4) and (f). This requirement contemplates that protesters will provide, at a minimum, credible allegations that are supported by evidence and are sufficient, if uncontradicted, to establish the likelihood of the protester’s claim of improper agency action. Protesters must provide more than a bare allegation; the allegation must be supported by some explanation and evidence that establishes the likelihood the protester will prevail in its claim of improper agency action. Warfighter Focused Logistics, Inc., B‑423546, B‑423546.2, Aug. 5, 2025, 2025 CPD ¶ 169 at 4.

Although ESI argues that BryMak’s facility maintenance and service call contract line items are overstated, the protester does not explain what makes these prices significantly overstated such that they could result in the payment of unreasonably high prices beyond noting that they are slightly higher than ESI’s corresponding prices.[7] Protest at 19‑20. Nor does the protester explain what makes the prices significantly understated such that they increase the risk of performance. The protester’s bare assertion of price disparities between offerors, without more, is not evidence of unbalanced pricing. See IR Techs., B‑414430 et al., June 6, 2017, 2017 CPD ¶ 162 at 7 n.7. Accordingly, we see no basis to conclude that ESI has met the threshold showing required to maintain a protest alleging unbalanced pricing. See KIRA Training Servs., LLC, dba KIRA Facilities Servs., B-419149.2, B‑419149.3, Jan. 4, 2021, 2021 CPD ¶ 48 at 8.[8] Accordingly, we dismiss this ground of protest as legally and factually insufficient.

Past Performance

ESI protests the agency’s evaluation of BryMak’s past performance. As discussed below, we find that multiple aspects of the past performance evaluation were unreasonable or insufficiently documented.

As an initial matter, the protester contends that the agency unreasonably evaluated a past performance reference as relevant even though it was not performed by BryMak as a prime contractor. Comments & Supp. Protest at 9 n.8; Supp. Comments at 14. Specifically, the protester alleges that one of BryMak’s past performance projects was awarded to an affiliate of BryMak, BryMak Eagle Pro LLC. This project was, therefore, not a prime contract performed by BryMak, the offeror, or one of its team members. Id. The agency responds that the solicitation permitted the agency to consider past performance the offeror performed as part of a joint venture’s prime contractor performance. Supp. COS at 5‑6; Supp. MOL at 13‑14. The agency asserts, without citing the contemporaneous record, that BryMak is a member of a joint venture called BryMak Eagle Pro LLC. Id.

The evaluation of an offeror’s past performance is generally within the discretion of the contracting agency, and we will not substitute our judgment for reasonably based past performance ratings. Computer Sci. Corp. et al., B‑408694.7 et al., Nov. 3, 2014, 2014 CPD ¶ 331 at 12. We will question an agency’s evaluation conclusions, however, when they are unreasonable or undocumented. OneSource PCS, LLC, B‑419222, Jan. 6, 2021, 2021 CPD ¶ 17 at 4. The critical question is whether the agency conducted the evaluation fairly, reasonably, and in accordance with the solicitation’s evaluation scheme. Al Raha Grp. for Tech. Servs., Inc.; Logistics Mgmt. Int'l, Inc., B‑411015.2, B‑411015.3, Apr. 22, 2015, 2015 CPD ¶ 134 at 5.

As noted above, the RFP mandated that a past performance project would only be considered relevant if it was awarded to the offeror, or its team member, as a prime contractor. RFP at 72. Here, BryMak’s proposal included a past performance project for preventative and demand maintenance at Fort Campbell, Kentucky, which identified the prime contractor as BryMak Eagle Pro LLC. AR, Tab 6, BryMak Proposal at 35‑39. However, nothing in the proposal explains the relationship between BryMak and BryMak Eagle Pro LLC. In addition, the proposal does not explain why a contract awarded to BryMak Eagle Pro LLC, rather than BryMak, should have been considered relevant when BryMak was the offeror, not BryMak Eagle Pro LLC, and the RFP provided that a past performance reference would only be considered relevant if it was awarded to the offeror, or its team member, as a prime contractor. Id. BryMak’s proposal also does not list BryMak Eagle Pro LLC as a team member of BryMak. Id.

In finding this project relevant, the agency’s contemporaneous evaluation credits this past performance to BryMak “as the [p]rime [c]ontractor” without any explanation of how BryMak Eagle Pro LLC either is the same entity as, or is in a teaming arrangement with, BryMak & Associates, Inc.. AR, Tab, 7, SSEB Report at 6‑7. To the contrary, BryMak and BryMak Eagle Pro LLC are registered as separate entities in SAM.gov, with BryMak Eagle Pro’s profile specifying that it is a subsidiary of BryMak & Associates, Inc.[9] Compare, Comments & Supp. Protest attach. 3, BryMak & Associates, Inc. SAM.gov Profile with Comments & Supp. Protest attach. 4, BryMak Eagle Pro LLC SAM.gov Profile.

Separately, BryMak’s proposal and BryMak Eagle Pro’s SAM.gov profile does not reveal any information to support the agency’s post-protest assertion that BryMak Eagle Pro LLC is a joint venture, much less a joint venture of which the instant awardee is a member.[10] AR, Tab 6, BryMak Proposal at 35‑39; Comments & Supp. Protest attach. 4, BryMak Eagle Pro LLC SAM.gov Profile. On these facts, we find that the agency’s evaluation of this project as relevant is unreasonable because it is contrary to the RFP’s explicit requirement that a reference would only be considered relevant when it was awarded to the offeror, or a member of the offeror’s team, as a prime contractor.[11]

The protester also contends that the agency unreasonably credited BryMark with past performance for two contracts submitted on behalf of BryMak’s team member CBFS. Comments & Supp. Protest at 12‑13. Specifically, ESI argues that the agency credited BryMak with performing on CBFS’s two past performance contracts even though nothing in the contemporaneous record supports such a conclusion. Id.

As relevant here, the agency’s evaluation found that:

Two other very relevant projects (Projects #4 & #5) were submitted for Teaming Agreement Contractor CB Facility Solutions, Inc. These two contracts which included work by BryMak resulted in Exceptional ratings in [past performance questionnaires] and CPARS.

AR, Tab 7, SSEB Report at 6.

The agency concedes that BryMak did not perform work on the two CBFS projects. Supp. MOL at 15. However, the agency maintains that its evaluation only meant to give CBFS credit for the work on these projects and explains that the references to BryMak in the evaluation are immaterial typographical errors. Supp. MOL at 15‑16. In this regard, the agency explains that the relevant sentence in question should have read “[t]hese two contracts which included work by CBFS resulted in . . ..”[12] Supp. MOL at 15‑16 (emphasis added).

Our Office will not limit its review of an agency’s evaluation to contemporaneously documented evidence, but instead will consider all the information provided, including a party’s arguments and explanations. Hoover Properties, B‑418844, B‑418844.2, Sept. 28, 2020, 2020 CPD ¶ 373 at 7; CRAssociates, Inc., B‑418194, Jan. 23, 2020, 2020 CPD ¶ 80 at 5. Post-protest explanations that provide a detailed rationale for contemporaneous conclusions, and simply fill in previously unrecorded details, generally will be considered in our review so long as those explanations are credible and consistent with the contemporaneous record. When, however, an agency’s post-protest defense of its evaluation is not supported by the contemporaneous record, or is inconsistent with the record, such explanations are unpersuasive and will be afforded little weight. Hoover Properties, supra at 7; Avionic Instruments LLC, B‑418604, B‑418604.2, June 30, 2020, 2020 CPD ¶ 225 at 6; Boeing Sikorsky Aircraft Support, B‑277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15.

Here, the agency’s claim that the above sentence was a typo and that the evaluators intended to state that “[t]hese two contracts which included work by CBFS . . .” does not make sense in the context of the rest of the paragraph. Supp. MOL at 15. As noted above, the preceding sentence in the evaluation discusses that CBFS submitted two past performance projects. The agency does not explain why it would have intended to comment that two projects submitted by CBFS included work by CBFS.

Further, the agency’s post-protest explanation ignores the evaluation’s other reference to BryMak performing on these past performance projects. In this regard, the past performance evaluation included a chart of BryMak’s submitted past performance projects. AR, Tab 7, SSEB Report at 7. Under a column of this chart titled “[r]ole,” the evaluators described both contracts at issue as “Prime CBFS/BrMk.” Id. In light of the above, we find the agency’s post-protest explanation--that it did not consider BryMak to have worked on the CBFS projects--to be inconsistent with the contemporaneous record and therefore afford it little weight. Accordingly, the agency erred in this aspect of its past performance evaluation where it credited BryMak with performance on past performance projects that it did not work on.

The protester also challenges the agency’s assignment of a rating of “very relevant” to a project performed by CBFS for full maintenance services at various Texarkana and northeast Louisiana sites. Comments & Supp. Protest at 8‑9; Protester’s Supp. Comments at 12‑13. In this regard, the protester alleges that the project was not performed by CBFS as a prime contractor, but rather as a non-managing member of a joint venture. Id. ESI argues that this evaluation finding violates the solicitation’s limitation on past performance to contracts that were awarded to the offeror, or a team member, as a prime contractor. Comments & Supp. Protest at 9.

The agency responds that it reasonably considered past performance CBFS performed as a member of a joint venture as prime contractor experience because members of joint ventures are partners that comprise a single offeror and are not necessarily subcontractors. Supp. MOL at 13. The agency contends that its conclusion that this past performance project was awarded to CBFS as a prime contractor is reasonable because CBFS performed the contract as a member of a joint venture. Id. at 13‑14.

Where an offeror relies on the past performance of a participant in a joint venture, the agency may consider the performance on the basis that the offeror had a sufficient role in the joint venture to make the performance relevant. Ashland Sales & Serv. Co., B‑408010.6, B‑408010.7, Mar. 28, 2014, 2014 CPD ¶ 113 at 13. Our Office has explained that an agency may properly consider an offeror’s past performance as a member of a joint venture when it is reasonably predictive of the offeror’s performance under the awarded contract or task order, even where the solicitation specifically limited past performance references to contracts performed as a prime contractor. Alliant Enter. JV, LLC, B‑410352.5, B-410352.6, Jul. 1, 2015, 2015 CPD ¶ 209 at 13.

Accordingly, absent an express solicitation prohibition against past performance earned as a member of a joint venture, we disagree with the protester’s assertion that the RFP categorically prevented the agency from considering past performance gained as a member of a joint venture. See SVD Stars II, LLC, B‑416446, B‑416446.3, Sept. 12, 2018, 2018 CPD ¶ 337 at 6 (denying protest alleging similar prohibition on the consideration of experience earned as a member of a joint venture that relied on a solicitation requirement for technical experience references to have been performed as a prime contractor). However, we find that the evaluation record here is not sufficiently documented to assess the reasonableness of the agency’s relevancy conclusion.

As noted above, we will only question an agency’s past performance evaluation conclusions when they are unreasonable or undocumented. OneSource PCS, LLC, B‑419222, Jan. 6, 2021, 2021 CPD ¶ 17 at 4. An agency’s past performance evaluation must be sufficiently documented to allow our Office to review the merits of a protest. Starlight Corp., B‑420267.3, B‑420267.4, Mar. 14, 2022, 2022 CPD ¶ 65 at 4. Where an agency fails to document or retain evaluation materials, it bears the risk that there may not be an adequate supporting rationale in the record for us to conclude that the agency had a reasonable basis for its evaluation conclusions. Id.

Here, BryMak’s proposal clearly disclosed the fact that CBFS’s Texarkana/Louisiana project was performed by a joint venture, not by CBFS as a prime contractor. AR, Tab 6, BryMak Proposal at 52. The record of the agency’s relevancy consideration, however, is limited to a conclusory narrative statement that the contract is very relevant. AR, Tab 7, SSEB Report at 6‑7. The only documentation of the agency’s evaluation of CBFS’s role as a prime contractor on the project is the entry in the “[r]ole” column of the chart where the evaluators described the contract as “Prime CBFS/BrMk.”[13] Id. at 7.

We note that the SSEB report did not mention that the past performance reference was performed by a joint venture, much less discuss whether CBFS had a sufficient role in the joint venture to make the performance relevant. The evaluation is also silent as to whether the agency considered if CBFS’s past performance as a member of the joint venture was reasonably predictive of CBFS’s intended performance under the awarded contract. In sum, there is insufficient information in the record to assess the reasonableness of the agency’s decision to consider CBFS’s performance of this past performance reference.[14]

Best-Value Tradeoff

ESI also contends that the Corps failed to perform or document a proper best-value tradeoff or source selection decision. Comments & Supp. Protest at 19-21. We agree.

In a best‑value procurement, such as the one here, it is the function of the SSA to

perform a tradeoff between price and non-price factors to determine whether one

proposal’s superiority under the non-price factors is worth a higher price. Verdi Consulting, Inc., B‑414103.2 et al., Apr. 26, 2017, 2017 CPD ¶ 136 at 13‑14. An

agency that fails to adequately document its source selection decision bears the risk

that our Office may be unable to determine whether the decision was proper. KPMG LLP, B‑420949, B‑420949.2, Nov. 7, 2022, 2022 CPD ¶ 280 at 12‑13.

Here, the SSA’s comparative analysis of ESI’s and BryMak’s proposals consisted of (1) a discussion of each offeror’s proposal under the understanding of the work factor, (2) a statement that BryMak and ESI each received the highest past performance rating and had “extensive experience supporting the 81st" Readiness Division, and (3) the following price/technical tradeoff:

To justify its higher price, ESI’s proposal must demonstrate technical strengths far superior to that of Bry[M]ak; however its proposal does not do that. ESI’s proposal was rated slightly higher for Factor 1, but both proposals received the same rating for Factor 2. This slightly higher rating for Factor 1 does not justify paying a price premium over Bry[M]ak’s proposal, as Bry[M]ak was assigned a “Good” rating for Factor 1, the Government has high confidence that Bry[M]ak can successfully perform this work, and its proposal is available at a lower price. Bry[M]ak’s proposal provides the best value and is the best overall business decision for the Government.

AR, Tab 8, SSDD at 7‑9.

When conducting a best‑value tradeoff analysis, our decisions explain that an agency may not simply rely on the assigned adjectival ratings to determine which proposal offers the best value because evaluation scores--whether they are numerical scores, colors, or adjectival ratings--are merely guides to intelligent decision‑making and often reflect the disparate, subjective judgments of the evaluators. Right Direction Tech. Solutions, LLC, B‑414366.2, June 13, 2017, 2017 CPD ¶ 202 at 5; Bendix Field Eng’g Corp., B‑241156, January 16, 1991, 91‑1 CPD ¶ 44 at 5. Instead, a tradeoff analysis should be based upon a qualitative comparison of the proposals consistent with the solicitation’s evaluation scheme. Highmark Medicare Servs., Inc. et al., B‑401062.5 et al., Oct. 29, 2010, 2010 CPD ¶ 285 at 19.

Here, the Corps’s tradeoff determination failed to look beyond the adjectival ratings, especially in the consideration of past performance. The RFP provided that greater consideration would be given to offerors with more relevant past performance, i.e., past performance involving the same type of work, performance among dispersed sites, performance spanning large geographic areas, and performance using the same type of equipment as will be used in performance here. RFP at 74. However, the tradeoff and source selection decision is silent as to whether such greater consideration was due to either offeror.

The record demonstrates that the agency evaluated all five of ESI’s submitted past performance references as very relevant contracts that involved essentially the same scope and effort required as the instant requirement, whereas the agency only considered three of the references submitted by BryMak to be very relevant, with two identified only as relevant with a “similar scope and magnitude” when compared to the current requirement. AR, Tab 7, SSEB Report at 7, 10. Further, four of ESI’s references were, like the instant effort, maintenance contracts supporting the 81st Readiness Division across a region of the country, while the fifth contract was a maintenance contract supporting the United States Marine Corps Reserves at seven sites located in three states. AR, Tab 7, SSEB Report at 10; AR, Tab 5, ESI Proposal at 53‑58. In contrast, only one of BryMak’s references was a maintenance contract supporting an 81st Readiness Division region, and its other four, although evaluated as relevant or very relevant, were contracts supporting four or fewer sites within more focused geographic regions. AR, Tab 7, SSEB Report at 7; see also AR, Tab 6, BryMak Proposal at 35‑65.

Despite these differences, the SSA concluded that ESI’s and BryMak’s past performance are essentially equal in terms of relevance or quality without any explanation other than reference to the adjectival ratings. AR, Tab 8, SSDD at 9. Accordingly, despite the assignment of equal adjectival ratings, absent a qualitative comparison of the offerors’ past performance as contemplated by the RFP’s evaluation scheme, we have no basis to determine if the agency’s evaluation judgments were reasonable. Moreover, the agency’s best-value tradeoff is separately flawed given the agency’s reliance on the underlying past performance evaluation errors discussed above.

Prejudice

Our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions; that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award. Starlight Corp., supra at 8. We resolve doubts regarding prejudice in favor of a protester since a reasonable possibility of prejudice is a sufficient basis for sustaining a protest. See Kellogg, Brown & Root Servs., Inc.--Recon., B‑309752.8, Dec. 20, 2007, 2008 CPD ¶ 84 at 5.

The agency argues that we should deny the protest because ESI cannot demonstrate prejudice. See, e.g., Supp. MOL at 14. In this regard, the agency speculates that even if it only evaluated three of BryMak’s past performance references, that “would have sufficed to earn BryMak a top past performance rating.” Supp COS at 3‑5, 6‑7. The agency avers that, on this basis its “overall award decision would not have changed.” Id. at 6. We disagree.

Our Office gives little weight to new evaluation or tradeoff judgments made in response to a protest. Patricio Enters., Inc., B‑412740 et al., May 26, 2016, 2016 CPD ¶ 152 at 8‑9. We accord lesser weight to such post hoc arguments or analyses because we are concerned that judgments made in the heat of an adversarial process may not represent the fair and considered judgment of the agency, which is a prerequisite of a rational evaluation and source selection process. Id.

Further, the agency’s arguments regarding prejudice here turn on whether the agency reasonably assigned BryMak a very relevant/substantial confidence overall past performance rating, not whether it reasonably considered the relative merits of the two offerors’ past performance. See Supp. COS at 6. As discussed above, the solicitation provided that greater consideration would be given to offerors with more relevant past performance. RFP at 74. The agency’s focus on the reasonableness of its assigned adjectival rating does not address our conclusion that the agency failed to qualitatively compare proposals under the past performance factor.

On this record, we have no basis--and we do not accept the agency’s argument--to speculate how the SSA would have viewed the relative merits of ESI’s and BryMak’s proposals in light of a new, reasonable, and sufficiently documented past performance evaluation. We note that any change in the agency’s relative assessment of the proposals could have resulted in a different best‑value tradeoff determination, especially given that ESI’s proposal was higher rated under the understanding of the work factor and BryMak was only evaluated to have a 2.1 percent price advantage. Accordingly, we conclude that ESI has established the requisite competitive prejudice to prevail on its protest.

RECOMMENDATION

We recommend that the agency reevaluate proposals in a manner consistent with the terms of the solicitation and this decision, adequately documenting the rationale for its evaluation conclusions, and make a new source selection decision based on the new evaluation, or take other such steps as permitted by applicable laws and regulations. We also recommend that the agency reimburse ESI its reasonable costs of filing and pursuing its protest, including reasonable attorneys’ fees. 4 C.F.R. § 21.8(d)(1). The protester’s certified claim for costs, detailing the time spent and the costs incurred, must be submitted to the agency within 60 days after receipt of this decision. 4 C.F.R. § 21.8(f).

The protest is sustained.

Edda Emmanuelli Perez
General Counsel

 

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