Weaknesses Cannot Be Assigned Unequally, GAO Confirms

An unequal evaluation can get an agency into hot water and force a reevaluation, as GAO has stated before. But with agencies entitled to broad discretion in their evaluations, how do you know what constitutes unequal evaluation?

Some GAO opinions can leave you wondering where the line is drawn, but a recent GAO decision provides an easy-to-understand example involving a requirement to train personnel under certain regulations. In that case, the GAO held that it was improper for the agency to assign a weakness to the protester for omitting a discussion of certain regulations as applied to its training program, while failing to assign weaknesses to several awardees whose proposals also omitted this discussion.

In Transworld Systems, Inc.,  B-414090.13 (December 22, 2017), GAO reviewed the award of an RFQ to multiple awardees under a Federal Supply Schedule. The RFQ was for private debt collection services for Department of the Treasury, Bureau of the Fiscal Service.

The evaluation criteria and weights assigned to each were (1) technical approach (25%); (2) management approach and organizational structure (management approach) (25%); (3) quality control approach (20%); (4) past performance (25%); and (5) utilization of small business concerns (5%). For quality control, the proposal, in part, had to outline a training plan to show “how staff would be trained on applicable laws, regulations, procedures, and Bureau requirements.”

Transworld Systems, Inc.’s quotation received a deficiency and a weakness and was rated poor for the quality control factor. The agency assigned a weakness “because TSI’s quotation did not address HIPAA and TOP [Treasury Offset Program] regulations in addressing training on laws and regulations and Bureau requirements.”

TSI filed a GAO bid protest challenging the agency’s evaluation.

Under GAO precedent, “[i]t is a fundamental principle of government procurement that competition must be conducted on an equal basis; that is, the contracting agency must treat all offerors or vendors equally; it must even-handedly evaluate offers against common requirements and evaluation criteria.”

GAO noted that the quotations of several awardees “did not address both HIPAA and TOP regulations and their quotations were not assessed weaknesses under the quality control factor for their omission.” Thus, GAO held, “the Bureau’s evaluation of TSI’s proposal was unequal as compared to the evaluations of the quotations of” four awardees.

GAO sustained the protest based on the unequal evaluation and recommended reevaluation of proposals.

This decision reinforces that GAO will sustain a protest based on unequal evaluation of weaknesses. Because an unequal evaluation may not become evident until outside counsel is able to review the source selection file under a protective order (which is what happened here), a protester may not be able to make an allegation of unequal treatment in its initial protest filing. But once the agency report is produced, if there is an example or two of unequal evaluation, that may constitute a good basis for a supplemental protest.