CIA improperly used oral instructions to evaluate modernization contract, GAO rules
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By
Nick Wakeman
The agency marked up Markon's costs by millions based on pre-bid guidance that was never incorporated into the final solicitation.
Markon has won another shot at a CIA contract after the Government Accountability Office ruled used unstated evaluation criteria.
The CIA originally awarded the 10-year contract to Arcfield on July 11 for support in areas such as business operations, IT engineering, and business enterprise modernization.
In its protest filed July 23, Markon said the agency conducted unreasonable evaluations of cost realism and past performance.
GAO has since found the CIA marked up Markon’s proposed costs because the company failed to follow oral instructions. During a pre-bid industry session, the CIA told potential bidders not to base their proposals on assumptions about the agency’s modernization plans.
But the CIA never incorporated those instructions into the final solicitation, according to the GAO ruling unsealed Friday.
The CIA argued that it did not need to rely on the oral instructions to make its decision, but GAO did not agree.
“The agency makes this assertion notwithstanding the evaluators' contemporaneous finding that Markon's proposed costs were unrealistic because they did not comply with instructions ‘provided in the in-person industry question and answer session,” GAO wrote in its decision.
The CIA source selection authority also wrote that Markon’s proposal was inconsistent with the oral instructions.
“The record fails to support the agency's assertion that it did not rely on lack of conformance with the oral instructions as the basis for concluding that Markon's proposal failed to comply with the solicitation's requirements,” GAO said.
The contracting officer could have included the oral instructions in the final solicitation, but chose not to.
“Because the agency's oral instructions were not incorporated into the solicitation, it was therefore improper for the agency to conduct its evaluation based on those instructions,” GAO said.
Ironically, the technical evaluation team awarded Markon two minor strengths in its modernization approach with proposed efficiencies being one of them. But the cost team rejected those same efficiencies as unrealistic because they allegedly violated the undocumented oral instructions.
If the CIA had not marked up Markon’s price by millions of dollars, its proposal would have been cheaper than Arcfield’s. GAO redacted both the pricing of the proposals and percentage difference between the two bids.
As for the past performance challenge, GAO denied that part of Markon’s protest and found the CIA’s evaluation was reasonable.
GAO wants the CIA to reevaluate cost realism consistent with the terms of the solicitation and relevant procurement laws and regulations and make a new award decision. Markon also can file for the CIA to reimburse the company for the costs of its protest.