United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Nexant, Inc.

File: B-407708; B-407708.2

Date: January 30, 2013

Daniel R. Forman, Esq., James J. Regan, Esq., James G. Peyster, Esq., and 

Stephan D. Rice, Esq., Crowell & Moring LLP, for the protester.

Peter B. Hutt, II, Esq., Thomas P. McLish, Esq., Scott M. Heimberg, Esq., and Maka 

Y. Hutson, Esq., Akin, Gump, Strauss, Hauer & Feld, LLP, for Deloitte Consulting, 

LLP, an intervenor.

R. Rene Dupuy, Esq., United States Agency for International Development, for the 

agency.

Scott H. Riback, Esq., and Jonathan L. Kang, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

1. Protest that the agency engaged in misleading discussions is sustained where 

the agency failed to convey its actual concerns to the protester in a manner that 

would have enabled the protester to meaningfully respond to the evaluated 

weaknesses identified in its proposal.

2. Protest challenging the agency’s technical evaluation is sustained where the 

agency’s evaluation was based on a flawed methodology and contained numerous 

unreasonable conclusions.

3. Protest that the agency’s award decision was flawed is sustained where the 

decision did not reasonably explain the basis for selecting the awardee’s higherrated, higher-cost proposal.

DECISION

Nexant, Inc., of Washington, D.C., protests the award of a contract to Deloitte 

Consulting, LLP, of Arlington, Virginia, under request for proposals (RFP) No. 486-

12-018A, issued by the United States Agency for International Development (AID), 

for services in connection with the establishment of a private financing advisory 

network in Asia (PFAN-Asia). Nexant argues that the agency engaged in 

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to 

a GAO Protective Order. This redacted version has 

been approved for public release.
Page 2 B-407708, B-407708.2 

misleading discussions, misevaluated proposals, and failed to make a source 

selection decision in accordance with applicable procurement laws and regulations.

We sustain the protest.

BACKGROUND

The RFP was issued on April 12, 2012, and contemplated the award of a costreimbursement contract for a five-year period to perform various services in 

connection with the establishment of the PFAN-Asia program. The underlying 

purpose of the PFAN-Asia program is to assist Asian businesses, governments and 

other entities to mobilize and “scale up” investments in clean energy projects by 

providing increased financing from interested investors to project developers in 

Asia’s developing countries. See RFP at 9-11.

Offerors were advised that the agency intended to award a contract to the firm 

whose proposal was deemed to offer the “best value” to the government, 

considering cost and the following non-cost evaluation factors: (1) technical 

approach, draft work plan summary, and draft summary performance management 

plan (40 points); (2) management approach (20 points); (3) personnel (20 points); 

(4) corporate capability (10 points); and (5) past performance (10 points). RFP 

at 87-88. The RFP provided that cost proposals would be evaluated for 

reasonableness, realism, completeness and consistency with an offeror’s technical 

proposal. RFP at 86-87. The RFP advised that the combined non-cost evaluation 

considerations were significantly more important than cost. RFP at 86. 

AID received a number of proposals in response to the solicitation. The agency 

evaluated the proposals, established a competitive range, engaged in discussions 

with the competitive range offerors, and solicited, received and evaluated final 

proposal revisions. The agency assigned the following evaluation ratings to, and 

determined the most probable cost for, the protester’s and awardee’s revised 

proposals as follows:
Page 3 B-407708, B-407708.2 

Evaluation Factor Deloitte Nexant

Technical Approach [deleted] [deleted]

Management Approach [deleted] [deleted]

Personnel [deleted] [deleted]

Corporate Experience [deleted] [deleted]

Past Performance [deleted] [deleted]

Total Point Score 94.73 86

Proposed Cost $[deleted] $[deleted]

Evaluated Cost $14,419,129 $14,245,367

Agency Report (AR), exh. 15, Final Memorandum of Negotiations, at 24, 25. On the 

basis of these evaluation results, the agency made award to Deloitte, finding that its 

proposal represented the best value to the government. Id. at 29-30. After learning 

of the agency’s selection decision and receiving a debriefing, Nexant filed the 

instant protest.

Despite the agency’s award of this contract to Deloitte on October 1, there is no 

contemporaneous document that sets forth the rationale for the agency’s award

decision. In fact, the only document in the record that embodies the agency’s 

source selection decision is the final memorandum of negotiations (FMN) cited 

above. This summary of the procurement, which includes the eventual best value 

decision, was executed on October 31--some 49 days after the source selection 

authority (SSA) states she made the decision to award the contract to Deloitte, 30 

days after the actual award was made, and 9 days after Nexant filed its protest with 

our Office. 

DISCUSSION

Nexant raises a large number of contentions, and we have considered all of them. 

We sustain Nexant’s protest based on the following arguments, which are 

discussed below: (1) the agency failed to provide Nexant meaningful discussions; 

(2) the agency’s evaluation of the offerors’ technical proposals was unreasonable; 

and (3) the agency’s selection decision was unreasonable. We deny Nexant’s 

remaining allegations.

Meaningful Discussions

Nexant argues that AID failed to provide it with an opportunity for meaningful 

discussions. It is a fundamental principle of negotiated procurements that 

discussions, when conducted, must be meaningful; that is, discussions must identify 

deficiencies and significant weaknesses in an offeror’s proposal that could 

reasonably be addressed so as to materially enhance the offeror’s potential for 

receiving award. PAI Corp., B-298349, Aug. 18, 2006, 2006 CPD ¶ 124 at 8; 

Spherix, Inc., B-294572, B-294572.2, Dec. 1, 2004, 2005 CPD ¶ 3 at 13. An 

agency may not mislead an offeror through the framing of a discussion question into 
Page 4 B-407708, B-407708.2 

responding in a manner that does not address the agency’s actual concerns, or 

otherwise misinform the offeror concerning a problem with its proposal. Metro 

Mach. Corp., B-281872 et al., Apr. 22, 1999, 99-1 CPD ¶ 101 at 6.

The solicitation here divides the requirements among five mandatory tasks (tasks 1 

through 5) and one optional task (optional task 6). RFP at 12-13. Task 1 requires 

the contractor to provide analytical and consultative input in determining the scope 

and nature of activities to be implemented as part of the overall statement of work 

(SOW). RFP at 12. The geographic scope of these activities during the period of 

performance is described in section 4.2 of the RFP as follows: 

The PFAN-Asia program will initially focus on the Association of 

Southeast Asian Nations (ASEAN) sub-region and support 

activities in Cambodia, Laos, Indonesia, Malaysia, Philippines, 

Thailand, and Vietnam. Based on the results of Task 1 . . . and 

direction from and approval of the Contracting Officer Representative 

(COR), starting in year 2 of the program the Contractor must either 

deepen support to the ASEAN sub-region or expand activities to also 

include the South Asia sub-region, including Bangladesh, India, 

Maldives, Nepal, and Sri Lanka. Considerations for expanding the 

program to South Asia include, but are not limited to: potential 

economies of scale as a result of replicating the approach in engaging 

the ASEAN sub-region; USAID bilateral Mission buy-ins in Option 6 

(see below); and opportunities to leverage resources through publicprivate partnerships . . . .

RFP at 12 (emphasis in original). 

Optional task 6, in turn, provides that the agency may, at its option, authorize 

country-specific support for PFAN activities through bilateral USAID Mission buyins. RFP at 12-13; 27. According to the agency, these task 6 bilateral buy-ins could 

involve USAID missions from any country, and were not limited to the South Asian

countries enumerated in the geographic scope quoted above. See, AR, exh. 13, 

Final Technical Evaluation Committee (TEC) Report, at 24. 

After evaluating initial proposals, AID assigned Nexant’s proposal a weakness for 

misunderstanding the geographic scope, as well as the nature of the tasks, outlined 

in the solicitation. Specifically, the evaluators identified the following weakness in 

the Nexant proposal: 

Nexant failed to understand that Optional Task 6 is designed to 

support focused country-level PFAN activities in any country, not just 

countries in South Asia. Thus, Nexant did not provide any creative 

ideas on leveraging sufficient resources and partnerships to engage 
Page 5 B-407708, B-407708.2 

South Asia as part of the overall program rather than relying entirely 

on Optional Task 6 resources . . . .

AR, exh. 7, Initial TEC Report, at 33.

During discussions, AID asked Nexant to address the following question: “Please 

clarify Nexant’s overall understanding [of] Optional Task 6.” AR, exh. 9, Nexant 

Discussion Questions, at 2. In response to the question, Nexant explained that it 

would expand PFAN activities in up to 4 South Asian countries, should funding be 

made available, and explained that Nexant already had a presence in three of the 

South Asian countries identified in the solicitation: India, Maldives and Sri Lanka. 

AR, exh. 11, Nexant Discussion Responses, at 10-11.

In evaluating Nexant’s response, the agency evaluators continued to assign 

Nexant’s proposal a weakness in this area, finding that Nexant did not understand 

that task 6 was not limited to the South Asian countries identified in the solicitation. 

AR, exh. 13, Final TEC Report, at 24. 

Nexant argues that AID’s discussion question was misleading because it did not 

afford it an opportunity to address the agency’s actual concerns regarding this 

weakness. As noted, the evaluators were concerned with two aspects of Nexant’s 

proposal in this area: (1) its apparent failure to understand that optional task 6 was 

intended to be available for exercise in any country, and not just in the countries 

identified by the RFP as South Asia; and (2) Nexant’s apparent failure to provide 

any creative ideas for leveraging resources and partnerships to engage South Asian 

countries as part of the overall program, rather than relying entirely on optional task 

6 resources. AR, exh. 7, Initial TEC Report, at 33. We agree with Nexant that the 

agency’s discussion question in this area was misleading. 

To the extent the agency’s discussion question focused on either of these two areas 

of concern, it was limited to directing Nexant’s attention--obliquely--to the first 

concern, namely, Nexant’s apparent misunderstanding of the geographical scope of 

optional task 6. We agree with the protester, however, that the discussion question 

did not adequately convey to Nexant the nature of the first concern because the 

protester was only asked, without elaboration, to clarify its understanding of optional 

task 6, and was never advised of its apparent misunderstanding of the geographic 

scope of optional task 6. More importantly, the question entirely failed to advise the 

protester of the agency’s second concern, which was Nexant’s apparent failure to 

provide creative ideas for leveraging resources and partnerships to engage South 

Asian countries as part of the overall PFAN program. Nexant therefore improperly 

was deprived of the opportunity to improve its proposal in this area. 

Moreover, the record shows that these concerns were specifically identified in the 

source selection portion of the FMN as the basis for one of just three enumerated 

weaknesses in the protester’s proposal that factored into the SSA’s best value 
Page 6 B-407708, B-407708.2 

decision. In describing this weakness remaining in Nexant’s proposal after 

discussions, the SSA stated:

However, the TEC found several responses unsatisfactory and 

unclear. For example, Nexant continued to misinterpret the program’s 

Geographic Scope (RFP section 4.2), and presented a narrow 

approach for expanding program activities in South Asia. Along a 

similar vein, Nexant failed to describe an approach for deepening 

activities in any country where a USAID Mission might buy-in to the 

PFAN-Asia program through Optional Task 6 (an option which may or 

may not ever be exercised); rather, Nexant incorrectly considered 

Optional Task 6 the only means of working in South Asia.

AR, exh. 15, FNM, at 29. We conclude that Nexant was prejudiced by the agency’s 

misleading discussions in this area. We therefore sustain this aspect of Nexant’s 

protest.1

Technical Evaluation

Nexant argues that AID’s technical evaluation contained numerous errors, 

inconsistencies and unexplained scoring anomalies. Nexant maintains that, 

because the offerors’ numeric scores were relatively close (86 points for Nexant’s 

proposal versus 94.73 points for Deloitte’s), and because the agency’s source 

selection decision relied heavily on the numeric scores assigned to the proposals, 

these errors, if corrected, could affect the agency’s source selection decision. 

We have reviewed Nexant’s allegations and agree that the agency’s scoring 

methodology and evaluation conclusions are not reasonable. In this connection, 

 1 Nexant also alleges that AID failed to apprise it of another weakness identified in 

connection with one of its proposed key personnel. We note that this weakness 

arose after Nexant replaced one of its key employees with another individual in its 

final proposal submitted after discussions. Because the weakness arose for the first 

time as a result of Nexant’s discussions response, the agency was under no 

obligation at that point to reopen discussions with Nexant in order to afford it an 

opportunity to remedy this new weakness. Honeywell Tech. Solutions, Inc., 

B-400771; B-400771.2, Jan. 27, 2009, 2009 CPD ¶ 49 at 10. Nonetheless, the

agency may wish to consider the protester’s arguments here in implementing our 

recommendation, discussed below, that the agency reopen discussions. In this 

regard, we point out that Federal Acquisition Regulation (FAR) § 15.306(d)(3) states 

that agencies are “encouraged to discuss other aspects of the offeror’s proposal 

that could, in the opinion of the contracting officer, be altered or explained to 

enhance materially the proposal’s potential for award.”
Page 7 B-407708, B-407708.2 

while our Office does not independently evaluate proposals, we nonetheless review 

the record to ensure that the agency’s evaluation is reasonable and consistent with 

the terms of the RFP, as well as applicable procurement statutes and regulations. 

Yang Enters., Inc.; Santa Barbara Applied Research, Inc., B-294605.4 et al., Apr. 1, 

2005, 2005 CPD ¶ 65 at 5; Acepex Mgmt. Corp., B-283080 et al., Oct. 4, 1999, 99-2 

CPD ¶ 77 at 3, 5. Additionally, while an agency’s use of point scores can serve to 

guide intelligent decision making, the assignment of the underlying point scores 

must be on an intelligible, reasonable, equal and consistent basis for all proposals. 

The Clay Group, LLC, B-406647, B-406647.2, July 30, 2012, 2012 CPD ¶ 214 at 

9-10.

We note at the outset that the record provided by AID does not explain how the 

evaluators assigned their scores. The record does not, for example, include a 

source selection plan with definitions of the scoring scheme used by the evaluators, 

nor do the TEC reports explain how the evaluators translated their assessments of 

strengths and weaknesses into numeric point scores.

2

 Although we recognize that 

there is no legal requirement for a source selection plan--or even, for that matter, 

pre-established definitions for use in scoring proposals--nonetheless, such 

evaluation tools can prove useful to an agency in achieving consistency in its 

evaluation. See e.g., Israeli Aircraft Indus., Ltd., MATA Helicopter Div., B-274389, 

et al., Dec. 8, 1996, 97-1 CPD ¶ 41 at 3 (source selection plan provided detailed 

basis for scoring proposals.)

The record shows that the AID evaluators first prepared individual evaluation 

worksheets, which listed the point scores assigned, and the strengths, weaknesses, 

significant weaknesses and deficiencies identified for the proposals under each 

evaluation factor. The evaluators then met to prepare a consensus TEC report. 

This procedure occurred during the initial evaluation, and again during the 

evaluation of the offerors’ revised proposals. In arriving at the consensus point 

scores for each offeror, the evaluators calculated a mathematic average of the point 

scores assigned by the individual evaluators, rather than developing a consensus 

score and rationale. AR, exh. 7, Initial TEC Report, at 3; AR, exh. 13, Final TEC 

Report, at 4, 21. The record shows that the agency’s reliance on the mathematic

average of the scores assessed by the individual evaluators appears to have 

resulted in mechanically-calculated scores that did not reflect the consensus 

judgment of the evaluators. While the use of a mathematic average in scoring 

proposals is not per se improper, in this case it resulted in the scores being 

distorted in the ways discussed below.

 2 The record includes a document entitled “Instructions for Technical Evaluation 

Committee,” AR, exh. 6, but that document outlines a sample adjectival scoring 

scheme that was not employed by the evaluators here. 
Page 8 B-407708, B-407708.2 

First, not all of the strengths and weaknesses identified by the individual evaluators 

were carried forward to the consensus TEC evaluation report. For example, in the 

final evaluation, one of the individual evaluators assigned only a single weakness to 

the Nexant proposal under the personnel evaluation factor, and assigned the 

proposal a numeric score of only [deleted] out of 20 available points. AR, exh. 14, 

Final Evaluator A Scoresheet (Nexant), at 6.3 The weakness assigned by evaluator 

A that resulted in the [deleted] point score (rather than a higher score), however, 

was not carried forward to the final TEC report. AR, exh. 13, Final TEC Report, at 

28-29. Since the weakness identified by evaluator A appears not to have been 

accepted in the consensus evaluation, the evaluators’ averaging method for 

calculating the consensus scores resulted in Nexant’s score being artificially lower 

than it should have been. 

Second, the record reflects instances where Nexant’s individual score was based 

on a weakness or significant weakness assessed by an individual evaluator, even 

though the consensus evaluation report shows that the evaluators expressly found 

that the weakness or significant weakness had been resolved during discussions. 

For example, evaluator B assigned the Nexant proposal a significant weakness 

under the management approach evaluation factor for not having adequate key 

personnel in the third year of the contract, and assigned the proposal a numeric 

score of only [deleted] out of 20 available points. AR, exh. 14, Final Evaluator B 

Scoresheet (Nexant), at 2. In the final TEC evaluation report, however, the 

evaluators specifically found that this significant weakness had been eliminated by 

Nexant during discussions. AR, exh. 13, Final TEC Report, at 25-25. The record 

therefore shows that inconsistencies such as these also had the effect of artificially 

lowering Nexant’s consensus scores. 

Third, the record reflects similar errors regarding the individual evaluator scores for

Deloitte’s proposal. For example, evaluator C originally identified a significant 

weakness in Deloitte’s proposal under the management approach factor for failing 

to present the awardee’s capacity in South Asian countries; the evaluator assigned 

the Deloitte proposal a score of [deleted] out of 20 available points under that 

evaluation factor. AR, exh. 8, Initial Evaluator C Scoresheet (Deloitte), at 2. This 

significant weakness was carried forward to the initial TEC report. AR, exh. 7, Initial 

TEC Report, at 9. After discussions, evaluator C continued to note this same 

significant weakness in the Deloitte proposal, but for reasons that are not explained 

in the record, evaluator C raised Deloitte’s score under the management factor to 

[deleted]. AID concedes that this scoring was in error. See Supp. AR at 10. 

 3 The record includes all of the initial individual evaluator worksheets in a single 

exhibit 8 and all of the final individual evaluator worksheets in a single exhibit 14. In 

order not to name the evaluators in our decision, we have designated the evaluators 

as evaluator A, evaluator B and evaluator C. 
Page 9 B-407708, B-407708.2 

Therefore, Deloitte’s score was artificially increased, even though the significant 

weakness remained.

Finally, the record shows that the TEC’s consensus evaluations contained internal 

inconsistencies that affected Nexant’s evaluation score, as well as the agency’s 

source selection decision. For example, under the management approach 

evaluation factor, the initial TEC report identified a weakness based on Nexant’s 

failure to adequately describe the roles and responsibilities of its program staff. AR, 

exh. 7, Initial TEC Report, at 34. After conducting discussions with Nexant, the 

evaluators expressly found that: “In its response to question 16, the Offeror fully 

addresses the TEC’s question regarding staff responsibilities and roles in 

implementing tasks.” AR, exh. 13, Final TEC Report, at 26. Notwithstanding this 

express finding, however, the final TEC report stated elsewhere, in its summary 

rationale for the protester’s final score for the management approach factor, that 

this remained an unresolved weakness. Id. at 28. This weakness, along with a 

second resolved weakness, is identified in the FMN as a basis for distinguishing the 

Nexant proposal from the Deloitte proposal. AR, exh. 15, FMN, at 29. 

In sum, the record reflects a lack of rationality and consistency on the part of the 

agency evaluators in assigning point scores to the proposals, such that the scores 

relied on by the SSA cannot be said to be reliable or reflective of the comparative 

merits of the proposals. Moreover, as discussed in detail below, the record shows 

that the SSA placed heavy reliance on the scores in connection with her award 

decision. We therefore sustain this aspect of Nexant’s protest.

Source Selection Decision

Nexant argues that the FMN does not adequately document the agency’s 

cost/technical tradeoff. According to the protester, the SSA principally relied on the 

difference in the point scores assigned, and also the number--but not the quality--of 

the strengths and weaknesses assigned to the proposals in arriving at her selection 

decision. 

We find that the agency’s selection decision is inadequate, in and of itself, to 

support the award to Deloitte. In this connection, where an agency makes award to 

a higher-rated, higher-cost proposal in a best value acquisition, the award decision 

must be supported by a rational and adequately-documented explanation of why the 

higher-rated proposal is, in fact, superior, and why its technical superiority warrants 

paying a price premium. FAR § 15.308; ACCESS Sys., Inc., B-400623.3, Mar. 4, 

2009, 2009 CPD ¶ 56 at 7. 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. ACCESS Sys., Inc., supra.

Here, the FMN does not identify any particular features of the Deloitte proposal for 

which the SSA thought it was worth paying a price premium. Instead, the record 
Page 10 B-407708, B-407708.2 

shows that she relied principally on the ranking of the proposals based on point 

scores or the generic number of strengths assigned to the proposals in concluding 

that award to Deloitte offered the best value to the government. She states:

As noted in the supplemental technical evaluation memorandum dated 

September 12, 2012, Deloitte had a significant lead in the original TEC 

review, and subsequently resolved most of the concerns the TEC 

raised during discussions with regard to its technical approach, draft 

work plan, draft PMP [performance management plan], management 

approach, and personnel. In all, Deloitte provided an outstanding and 

clear proposal for implementing the PFAN-Asia program. 

Deloitte’s, [Offeror A’s] and Nexant’s proposals were all strengthened 

during discussions. However, while [Offeror A and] Nexant 

demonstrated general improvements, both again achieved a revised 

score considerably lower than Deloitte’s revised score. Deloitte 

continued to reflect significantly more strengths and fewer 

weaknesses than both [Offeror A] and Nexant’s proposals.

* * * * *

Given the significant overall quality of its response to the requirements 

of the RFP, the TEC unanimously concluded that Deloitte’s proposal 

offered a substantially better chance for success in achieving the 

program objectives of the PFAN-Asia program. Ultimately, Deloitte’s 

proposal had more exceptional strengths that would significantly 

benefit the Government than either Nexant’s or [Offeror A’s] 

proposals.

AR, exh. 15, FMN, at 28-29. 

This generic, albeit often repeated, conclusion--that the Deloitte proposal offers the 

best value because it was ranked higher than the other two proposals and included 

more strengths than the other two proposals--does not meet the requirement for an 

explanation of why the higher-rated proposal is, in fact, superior, and why its 

technical superiority warrants paying a price premium.

4

 4 In addition, the FMN includes a reference to weaknesses found in Nexant’s 

management approach that remained unaddressed. Id. As discussed above, 

however, the record shows that the weaknesses relating to Nexant’s management 

approach had been resolved, and that only a weakness relating to its management 

of subcontractors remained. AR, exh. 13, Final TEC Report, at 25-28. Further, the 

tradeoff analysis refers to a weakness concerning Nexant’s expanding programs in 

South Asian countries, and its approach to optional task 6. AR, exh. 15, FMN, 

As a result, we sustain 

(continued...)
Page 11 B-407708, B-407708.2 

Nexant’s protest that the agency failed to reasonably explain its basis for selecting 

Deloitte’s higher-rated, higher-cost proposal.

Finally, Nexant contends that AID’s source selection decision does not support the 

award to Deloitte because it was not a contemporaneously-prepared document. In 

this connection, as noted, the record shows that the agency’s FMN--which is the 

only document produced by the agency that embodies its source selection 

decision--was executed on October 31, some 49 days after the SSA states she 

made the decision to award the contract to Deloitte, 30 days after the actual award 

was made, and 9 days after Nexant filed its protest with our Office. The protester 

maintains that we should therefore accord little weight to the FMN because it was 

prepared in the heat of litigation.

Among the most basic requirements in a negotiated best value acquisition is the 

requirement that the agency adequately document its source selection decision. 

FAR § 15.308 expressly provides:

The source selection decision shall be documented, and the 

documentation shall include the rationale for any business judgments 

and tradeoffs made or relied on by the SSA, including benefits 

associated with additional costs. 

While the FAR itself is silent on the question of when this documentation should be 

prepared, our Office has spoken on numerous occasions about the probity of 

information presented or prepared after the source selection decision has been 

made. Most notably, for example, in our decision in Boeing Sikorsky Aircraft 

Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15, we stated:

While we consider the entire record, including statements and 

arguments made in response to a protest in determining whether an 

agency’s selection decision is supportable, we accord greater weight 

to contemporaneous source selection materials rather than 

judgments, such as the selection officials’ reevaluation here, made in 

response to protest contentions. [citations omitted]. As pointed out 

above, the agency does not acknowledge that it erred. Rather, we are 

 

(...continued)

at 29. As discussed above, this weakness related to an area where we conclude

the agency failed to provide meaningful discussions. We also note that the SSA 

based her award decision on the difference in the offerors’ proposed costs, as 

opposed to their evaluated costs. AR, exh. 15, FMN, at 29. This also was 

improper. FAR §§ 15.305(a)(1); 15.404-1(d); Tidewater Constr. Corp., B-278360, 

Jan. 20, 1998, 98-1 CPD ¶ 103 at 4. 
Page 12 B-407708, B-407708.2 

faced with an agency’s efforts to defend, in the face of a bid protest, 

its prior source selection through submission of new analyses, which 

the agency itself views as merely hypothetical and which are based on 

information that the agency continues to argue is not accurate. The 

lesser weight that we accord these post-protest documents reflects 

the concern that, because they constitute reevaluations and 

redeterminations prepared in the heat of an adversarial process, they 

may not represent the fair and considered judgment of the agency, 

which is a prerequisite of a rational evaluation and source selection 

process.

We recognize that the situation we faced in Boeing Sikorsky is not completely 

analogous to the situation here. Of significance, the agency’s source selection 

decision in the Boeing Sikorsky case had been memorialized contemporaneously;

the question we were considering was what weight to give to a new, revised source 

selection decision--prepared during the course of the protest--that the agency 

maintained demonstrated that the protester had not been prejudiced. 

Here, we are faced with the unusual circumstance of there being no 

contemporaneous source selection document. Instead, the agency offers only a 

source selection document prepared well after the selection decision was made, 

and after Nexant filed its protest. While AID points out that the underlying technical 

and cost evaluations were completed and documented prior to the award and the 

protest, the rationale for the SSA’s selection of Deloitte’s higher-rated, higher-cost 

proposal for award was not documented until after Nexant’s protest was filed. 

Because this document was prepared after the agency had the benefit of having 

reviewed Nexant’s protest allegations,

5 the protester expresses a reasonable

concern that the document may not represent the agency’s fair and considered 

judgment about the selection, and instead was crafted in response to the protest. 

To answer this concern would require our Office to consider and decide what weight 

should be given to a selection decision prepared after the agency receives the 

protest.

6

 5 Nexant expressly argued in its supplemental protest that the SSA had the benefit 

of having reviewed its original protest for 9 days prior to the FMN being prepared; 

the agency has offered no evidence to the contrary. 

 However, since we otherwise conclude, as set forth above, that both the 

6 We recognize that there are cases where we have given consideration to 

materials prepared after the original source selection decision document. For 

example, in ITT Federal Servs. Int’l Corp., B-283307, B-283307.2, Nov. 3, 1999, 

99-2 CPD ¶ 76 at 5-7, we discussed at length the probative value of three different 

pieces of evidence: a document prepared one day after the source selection 

decision document had been executed; a declaration from the SSA submitted with 

the agency report; and testimony from the SSA presented at a hearing convened by 

(continued...)
Page 13 B-407708, B-407708.2 

selection decision, and the underlying assessments on which it relies, are 

unreasonable, we need not answer at this time the question of the appropriate 

weight to be given the post-protest FMN. 

RECOMMENDATION

We recommend that the agency reopen the acquisition and engage in meaningful 

discussions with the offerors, consistent with the discussion above. At the 

conclusion of those discussions, we recommend that the agency obtain and 

evaluate revised proposals, and make a new--contemporaneous--source selection 

decision that adequately documents the comparative merits of the proposals and 

the agency’s rationale for its award decision. Should the agency conclude that an 

offeror other than Deloitte has submitted the proposal that represents the best value 

to the government, we recommend that the agency terminate the contract awarded 

to Deloitte and make award to the successful offeror, if otherwise proper. Finally, 

we recommend that the agency reimburse Nexant the costs associated with filing 

and pursuing its protest, including reasonable attorneys’ fees. Bid Protest

Regulations, 4 C.F.R. § 21.8(d) (2012). The protester’s certified claim for costs, 

detailing the time expanded and costs incurred, must be submitted to the agency 

within 60 days after receipt of this decision. Id. § 21.8(f).

The protest is sustained.

Susan A. Poling

General Counsel

 

(...continued)

our Office. We ultimately gave weight to all three of these pieces of evidence. We 

characterized the first document, prepared just one day after the source selection 

document was executed, as essentially a contemporaneous document, and we 

found the other materials (the SSA’s declaration and testimony) credible because 

they were consistent with the original source selection decision document and 

merely provided detailed explanations or rationale for the conclusions that were 

embodied in the original--contemporaneous--source selection decision document. 

Here, there is no contemporaneous source selection decision document, and thus, 

nothing with which to compare the subsequently-prepared source selection decision 

document.