A recent Government Accountability Office bid protest decision highlights a recurring problem in federal procurement: agencies that take corrective action can still make mistakes that lead to a sustained protest. In N&S Property Services, LLC, GAO upheld a second protest after the agency tried to fix its first error, ruling that the reevaluation was unreasonable, poorly documented, and inconsistent with the solicitation.
The Dispute Over a DHS Contract at Fort Benning
The U.S. Department of Homeland Security, through Immigration and Customs Enforcement, issued an 8(a) set-aside solicitation for facility operations and maintenance services at Fort Benning, Georgia. The contract was to support ICE’s Office of Firearms & Training Program. The solicitation used a best-value tradeoff with three evaluation factors: technical capability and approach, key personnel, and price. It stated that non-price factors were significantly more important than price.
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After receiving final revised proposals from four offerors, ICE awarded the contract to KCorp Reliance Company, Inc. N&S protested. The agency then took voluntary corrective action and reevaluated all proposals. Following that reevaluation, it again chose KCorp — even though that firm’s price was much higher than N&S’s. The protester challenged the decision a second time, and GAO sustained the protest.
Why GAO Sustained the Protest After Corrective Action
GAO found several evaluation errors that infected the agency’s best-value decision. The findings on N&S’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 the reevaluation were inadequately documented and not meaningfully defended in the agency report. The source selection authority relied on those flawed technical findings in the price–technical tradeoff, which established competitive prejudice.
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ICE had criticized N&S for not submitting a Basis of Performance (BOP) in its proposal, for using the term “coordination” — language taken from the solicitation itself — and for using conditional language like “would” to describe future scenarios. The agency also cited redline markings as evidence of incompleteness. GAO rejected each rationale. The BOP was a post-award deliverable; the solicitation never required it. Penalizing N&S for using language from the solicitation or for using conditional phrasing was unreasonable. The redline markings actually showed compliance with amendment instructions requiring offerors to identify changes.
Unstated Evaluation Criteria and the Limits of Corrective Action
The decision reinforces that GAO will sustain a protest when the record shows the tradeoff analysis was materially influenced by unsupported technical conclusions. The outcome also reflects a practical reality: successful GAO protests often hinge on a close review of the contemporaneous evaluation record, identification of internal inconsistencies, and careful development of prejudice arguments.
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Representing the protester, the same counsel worked through multiple rounds — a first protest that brought corrective action, then a second protest challenging the reevaluation. The ruling shows how agencies can repeat or compound evaluation errors during corrective action, and why contractors should stay vigilant even after an agency agrees to reexamine proposals.
What the Case Means for Contractors
First, agencies cannot 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 watch corrective action reevaluations closely. Corrective action does not necessarily fix evaluation flaws, and reevaluations often create new inconsistencies or documentation gaps. Third, GAO expects a clear, contemporaneous record supporting an agency’s conclusions. Unsupported technical findings and poorly explained strengths or weaknesses can undermine an entire best-value award.
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