Once again, the Maryland State Board of Contract Appeals denied a bid protest appeal from the procurement for agile resource and teams services for Maryland Department of General Services.   The “massive undertaking” is for potentially 40 contracts over three functional areas and could amount to $445,000,000 in state technology business over a 10-year period.  The solicitation drew 200 proposals – meaning potentially more than 160 disappointed proposers.

One such disappointed proposer was FEI.com Inc. d/b/a FEI Systems which submitted a proposal for one of the 20 contracts available in what was called Functional Area 2.  The Evaluation Committee gave FEI a ranking of 31^st technically, 13^th financially and 30^th overall – out of a total of 36 proposals on Functional Area 2.

After a debriefing, FEI protested, contending that DGS: 1) improperly evaluated FEI’s proposal for the evaluation criteria set forth in the RFP; 2) improperly evaluated FEI’s Staffing Management Plan and Qualifications and Capabilities by not checking references; and 3) failed to conduct a proper cost benefit analysis as evidenced by its overweighting of the technical score – though the RFP provided that technical was to be given greater weight.

On June 24, 2025, the board held a merits hearing.  After FEI presented its case, the board granted DGS’s motion for judgment without requiring the state to go forward.  On July 15, 2025, the board published its Opinion and Order, explaining the ruling.

With respect to FEI’s first contention that DGS improperly evaluated the technical proposal, the board decided that FEI did no more than “cherry pick” examples from the evaluators’ forms and compared them to six other offerors.  The board noted that FEI did not call the procurement officer to testify (as an adverse witness) concerning how proposals were evaluated and the rationale underlying the rankings and award determination.  The evidence before the board, as it held, was a “mere disagreement” with the judgment of the evaluators, which was insufficient to show that the evaluation was unreasonable.

With respect to FEI’s second contention that DGS failed to contact references, the RFP required offerors to provide case studies and references in the proposals, but it did not set forth a requirement that references be checked.  FEI argued that it was not reasonable for the PO to fail to contact references, but the board held otherwise.  While the board stated that “[b]est practice in evaluating a technical proposal is to check the references that the solicitation asked offerors to provide,”  the board nonetheless declined to impose an affirmative obligation on the PO to do so.

Finally, the board addressed FEI’s contention that the PO’s overall 30^th ranking for FEI demonstrated that DGS failed to perform the required cost-benefit analysis.  FEI contended its 31^st technical ranking, and its 13^th financial ranking should have resulted in a final ranking better than 30^th overall. In fact, FEI’s financial offer was lower than 12 of the 20 recommended awardees and its price was 45% less than one of the awardees. The RFP, however, stated that technical scores would be given greater weight.  And the PO had stated in the final decision letter that “DGS considered FEI’s price but did not believe FEI’s price significantly countered FEI’s technical rank.”

Again, the board was troubled by FEI’s failure to call the PO as an adverse witness, stating:  “Had the PO testified, he may have been able to provide some greater insight into the evaluation process and whether a cost-benefit analysis was performed.”   Without this testimony, the board had no evidence to support that a cost-benefit analysis was not properly done.

FEI countered that it should be DGS’s burden to show that a proper cost-benefit analysis was conducted.  But the board, distinguishing cases where an RFP required equal weight be given to both technical and financial scores, declined to shift this burden to the state.

Calling a procurement officer, or any state employee, as an adverse witness in a procurement appellant’s case is always a daunting task. As FEI’s case demonstrates, however, not calling a PO as an adverse witness can be the difference between success and failure –  or at least whether the State is required to put on a case.

Barry L. Gogel is the managing partner of the Baltimore office of Rifkin Weiner Livingston, LLC, and practices before the Maryland State Board of Contract Appeals. Along with his colleagues at the firm, he writes a regular column on procurement legal issues. He can be contacted at bgogel@rwllaw.com.