In its evaluation of proposals, a procuring agency gave a challenger a strength for proposing to recruit incumbent employees, but didn’t give the incumbent contractor a strength–even though the incumbent contractor proposed to retain the very same people.
Unsurprisingly, the GAO found that the evaluation was unequal, and sustained the incumbent’s protest.
Resolving a protest challenging a past performance evaluation, GAO is deferential to the agency’s determinations. It is primarily concerned with whether the evaluation was conducted fairly and in accordance with the solicitation’s evaluation criteria; if so, GAO will not second-guess the agency’s assessment of the relevance or merit of an offeror’s performance history.
For protesters, therefore, challenging an agency’s past performance evaluation can be difficult. But a recent decision makes clear this task is not impossible—GAO will sustain a protest challenging a past performance evaluation if the agency treats offerors differently or unfairly, such as by more broadly reviewing the awardee’s CPARs than the CPARs of the protester.
An agency cannot make material changes to a solicitation after selecting a contractor for award without going back and giving all offerors the opportunity to compete on the revised solicitation. In GAO Protest of Diebold, Inc., B-404823 (June 2, 2011), the GAO sustained a bid protest because the agency failed to allow the protester to compete on the revised solicitation.