GAO Rarely Sustains Protests—But When It Does, It Matters: emissary LLC Prevails Against WHS

In a striking but rare development, the Government Accountability Office (GAO) sustained a protest filed by emissary LLC, a woman-owned small business and incumbent contractor, challenging the Department of Defense, Washington Headquarters Services’ (WHS) award of a technical support services contract to Gemini Industries Inc. The case, B-422388.3; B-422388.4, is noteworthy not only for the breadth of procurement missteps uncovered, but also because it represents the exception rather than the rule: most GAO protests are denied.

It’s worth emphasizing that GAO rarely sustains protests—only about 13% of decisions each year result in a sustain. The vast majority are either dismissed or denied, often because agencies operate within a wide range of discretion and because protesters carry a high burden of proof. That makes this ruling in emissary LLC especially significant, signaling that the agency's evaluation and award decision suffered from material, well-documented errors.

The protest centered around WHS’s award under a best-value procurement for services in support of the Office of the Assistant Secretary of Defense for Special Operations/Low-Intensity Conflict (OASD-SOLIC). Both emissary and Gemini received the same technical and past performance ratings, but Gemini's proposal was priced nearly $1.9 million lower. emissary challenged the evaluation and resulting award, and the GAO agreed—on multiple substantive grounds.

First, WHS credited Gemini’s proposal for matching the solicitation’s exact labor mix and hours, when in fact Gemini had proposed a shorter base performance period and fewer hours. Despite the agency’s acknowledgment of the error, it failed to reconsider the technical implications. This inconsistency directly violated the solicitation’s evaluation criteria.

Second, GAO found that WHS conducted an inadequate evaluation of offerors’ phase-in plans. Although emissary, as the incumbent, proposed fully staffed personnel ready on day one, WHS gave equal credit to Gemini’s plan to become fully functional by day thirty. The agency treated what should have been a comparative advantage as a pass/fail issue, failing to conduct the required qualitative assessment.

Third, Gemini’s proposed key personnel failed to clearly meet required qualifications for specialized experience in Global Force Management and the Secretary of Defense Orders Book process. Evaluators assumed experience based on job titles, not documented responsibilities—an unsupported leap that GAO found to be both speculative and undocumented.

In addition, while emissary did not press its challenge to Gemini’s organizational conflict of interest (OCI) mitigation plan, GAO nonetheless found fault with WHS’s failure to consider how Gemini’s mitigation measures materially altered its proposed technical approach. The firewalling of entire divisions and changes to the management structure should have prompted a reassessment of performance risk—yet the agency overlooked it.

Finally, the GAO determined that WHS improperly credited Gemini’s past performance on an IT and cyber-focused Air Force contract as relevant to the highly specialized policy, legislative, and strategic communications work required under the solicitation. The record failed to support a finding of similar scope or complexity.

These flaws compounded into a flawed best-value tradeoff. WHS concluded that Gemini’s technical and past performance were essentially equal to emissary’s, which justified selecting the lower-priced offer. But with serious gaps in how WHS reached that conclusion, GAO found the source selection unreasonable.

In a procurement environment where most protests are dismissed or denied, emissary’s win stands out as a rare but important check on agency discretion. It demonstrates that while sustained protests are difficult to achieve, they remain a critical tool for ensuring fair, transparent, and rule-bound acquisitions.

Disclaimer: This blog post is intended for general informational purposes only. It is based on a review of publicly available GAO protest decisions and does not constitute legal advice. While every effort has been made to ensure accuracy, readers should consult official sources and qualified counsel before acting on any information herein.