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No Covert Amendments or Secret Criteria: GAO Sustains Protest Against CIA

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    • In Markon LLC, B-423767, et al. (Dec. 12, 2025), Markon protested the Central Intelligence Agency’s award to Arcfield for business operations, IT engineering and business enterprise modernization support. Markon challenged the CIA’s cost realism evaluation, arguing that the agency improperly relied on oral instructions given during pre-solicitation industry one-on-one sessions, instructions that were never incorporated into the final RFP. According to Markon, the CIA used those oral statements to reject Markon’s proposed efficiencies and imposed a significant upward cost adjustment instead of evaluating whether Markon’s proposed costs were realistic for its unique technical approach. GAO sustained the protest, finding that the CIA evaluated proposals using unstated criteria and failed to conduct the cost realism analysis required by the solicitation and procurement regulations.

    The Decision
    GAO sustained the protest, ruling that:

    1. Oral Instructions Did Not Amend the Solicitation: GAO reaffirmed that oral communications—even from the contracting officer—do not amend a solicitation if they would alter its written terms. While GAO recognizes a narrow exception where time is of the essence, the record here contained no indication of urgency. Because the CIA never incorporated its oral guidance into the final RFP, it was improper to treat those statements as binding proposal requirements.
    2. Pre-RFP Industry Q&A Could Not Be Used as Evaluation Criteria: The CIA internally documented questions and answers from industry one-on-one sessions but never shared that summary with offerors or incorporated it into the solicitation. GAO rejected the agency’s reliance on those communications, emphasizing that proposals must be evaluated solely against the criteria stated in the final RFP, not against undocumented or unpublished guidance.
    3. Draft-Stage Guidance Does Not Control the Final Evaluation: GAO reiterated that comments made during the draft RFP phase have no controlling effect once the final solicitation is issued. Although the CIA could have amended the RFP to reflect its preferences, it did not do so and could not later enforce those preferences through evaluation.
    4. Cost Realism Requires Evaluating the Offeror’s Actual Technical Approach: Rather than assessing whether Markon’s proposed costs were realistic for its favorably rated technical approach, the CIA rejected Markon’s efficiencies as inconsistent with oral instructions. GAO held that this short-circuited the required cost realism analysis, which must compare an offeror’s proposed costs to how that offeror actually proposes to perform the work.
    5. Upward Cost Adjustments Cannot Enforce Unstated Requirements: GAO found no support for the CIA’s assertion that the solicitation otherwise prohibited the efficiencies and enhancements Markon proposed. To the contrary, the SOW expressly contemplated modernization, process improvement and efficiency gains. The CIA therefore could not use an upward cost adjustment to force Markon’s proposal into compliance with requirements that were never included in the RFP.
    6. The Cost Realism Evaluation Was Unreasonable: Because the CIA relied on oral instructions not incorporated into the solicitation and failed to meaningfully compare Markon’s technical approach with its proposed costs, GAO found the cost realism evaluation and resulting upward cost adjustment unreasonable and sustained the protest.

    Key Takeaways for Contractors

    1. Oral Guidance Is Not a Substitute for a Solicitation Amendment: Agencies cannot rely on informal oral statements to impose proposal requirements. If it’s not in the final RFP, it generally cannot be enforced through evaluation.
    2. The “Time Is of the Essence” Exception Is Narrow: GAO will allow oral amendments only in limited circumstances involving genuine urgency. Absent a clear record showing time pressure, agencies must amend the solicitation in writing.
    3. Cost Realism Must Be Tied to the Offeror’s Actual Proposal: Agencies may not ignore a protester’s unique technical approach and simply adjust costs to align with the agency’s preferred approach. Cost realism requires evaluating whether that offeror’s proposed costs are realistic for that offeror’s proposal.
    4. Unstated Evaluation Criteria Remain a Common Protest Vulnerability: This case is a reminder that even well-intentioned agency preferences—if not reflected in the solicitation—can undermine an award and lead to a sustained protest.