It is relatively rare that the Government Accountability Office (GAO) or the U.S. Court of Federal Claims (COFC) orders that a source evaluation board (SEB) or a source selection authority (SSA) be removed and replaced with new source selection officials as part of the relief in a bid protest. In the few instances where the GAO or the COFC has ordered such relief, the record included direct evidence of improper conduct by source selection officials, such as the inappropriate involvement of an agency supervisor in the source selection process or a source selection official knowingly making mischaracterizations relating to the source selection. For example, in Lavezzo v. United States, 74 Fed. Cl. 502, 504 (2006), the COFC found that the record reflected considerable agency discord between the contracting officer and his immediate supervisor, leading to a direct negative effect on the protestor. Likewise, in University Research Co., B-294358, Oct. 28, 2004, 2004 CPD ¶ 217, GAO held that there was "no dispute" that the contracting officer mischaracterized an award recommendation.
On December 15, 2008, Judge Susan Braden of the COFC in Wackenhut Services, Inc. v. United States, 2008 WL 5250208 (Fed. Cl. 2008), ordered that both a new SEB and a new SSA be appointed—the SEB to re-evaluate the proposals under a NASA solicitation for protection services and the SSA to determine which proposal provides the best value to the Government. But the evidentiary basis on which the court ordered the replacement of the SEB and the SSA is notable, as the decision seems to be based merely on the "appearance" of undue influence by the SSA on the SEB and less-than-independent judgment by the SSA.
Indeed, the most conclusive finding by the court relating to the SSA's influence on the SEB was that it "appear[ed] that the SSA may have influenced the SEB" to increase the awardee's scores and ratings between the SEB's initial and final findings. The appearance of influence, according to the court, arose from the fact that early on, the SSA rejected the SEB's initial competitive range determination; later, he rendered his award decision the same day as the SEB's briefing to him; and he had communications of an unknown nature and extent with the SEB during the SEB's consideration of its final findings, all of which suggested to the court that the SSA's best value decision may already have been reflected in the SEB's final report.
The court also had trouble with the "independence" of the SSA's decision, noting that the SSA had "solicited and considered the views of key senior personnel at NASA and center representatives during the executive session about the SEB's presentation." The record was silent as to the impact, if any, of such communications on the SSA's decision.
Thus, although the court demonstrated its belief that the decisions of the SEB and the SSA were not independent and somehow "tainted," the court never found more than an appearance of impropriety. No direct evidence of untoward influence is in the record. The Wackenhut decision therefore demonstrates, in contrast with prior GAO or COFC precedent, a willingness to replace an SEB or an SSA based on less than the compelling record evidence in prior cases.
Adding to the unusual disposition of the Wackenhut decision, the COFC also ordered that the new SSA forward his findings to the court after the SSA reaches a new award decision. It is unclear what the court intends to do once it receives the decision. Generally, once a protest is sustained and a re-evaluation is ordered, the court and GAO become involved again only if the new decision is protested.