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No Harm, No Foul: GAO Reaffirms That Prejudice Is Everything

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In Kako’o Spectrum Healthcare Solutions, LLC, B-421127.5, et al., May 28, 2025, Kako’o Spectrum Healthcare Solutions (KSHS) protested the U.S. Marine Corps’ award to Cognito Systems, arguing that Cognito’s proposal exceeded the page limit and that the agency unreasonably failed to assign additional strengths to KSHS’s own proposal. KSHS claimed that if the agency had enforced the page limit and evaluated both proposals fairly, it would have won.

The Decision
GAO denied the protest, ruling that:

  1. Page Limits Were Waived, but No Prejudice Shown: GAO acknowledged that Cognito’s proposal exceeded the 50-page limit and that the agency effectively waived that requirement.  But GAO found that KSHS used only 31 of the 50 allowed pages, and never explained how it would have used extra pages to gain a competitive advantage. Without that, no prejudice could be established.
  2. More Content Means More Opportunity to Impress: Cognito used every available page—and then some—to highlight the company’s technical differentiators. KSHS, by contrast, left 19 pages unused, limiting its opportunity to demonstrate strengths that might have changed the outcome.
  3. No Basis to Second-Guess Strength Assignments: GAO rejected KSHS’s argument that it deserved more strengths, reiterating that exceeding requirements does not automatically warrant a strength, and that agencies have discretion in evaluating proposal benefits.

Key Takeaways for Contractors

  1. Prejudice Is Essential—No Harm, No Foul: Even if the awardee violates solicitation rules (e.g., page limits), your protest will fail unless you can show that the error impacted the outcome.
  2. Use All Available Pages: If you have a 50-page limit, use it. Your competitors will, and the extra space may be what earns them a higher technical score.
  3. Agencies Don’t Document Everything, and They Don’t Have to: Evaluators often document only what stands out (e.g., strengths and weaknesses). Just meeting requirements won’t show up in the record.
  4. Don’t Assume Extra Experience Equals Extra Credit: Even as the incumbent, you need to highlight the added value of your experience. It won’t automatically translate to a strength.