Unequal Evaluation: Incumbent Not Credited For Retaining Its Own Employees

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.

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GAO: Use Of CPARs Must Be Equal

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.

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GAO: Post-Award Modifications Unfair; Protest Sustained

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.

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