Much like schoolyard basketball, bid protests feature a “no
harm, no foul” rule: unless an offeror can credibly allege that it was
prejudiced by a flawed evaluation, GAO won’t sustain a protest.
Establishing prejudice can be tricky, depending on the type
of evaluation at issue. Under a lowest-price technically acceptable award, a
protester generally must show that it was next-in-line for the award (that is, it
was technically acceptable and had the next-lowest price, after the awardee).
Best value awards, on the other hand, are a bit more flexible: usually, the
protester must establish that the evaluation flaw adversely affected its
A recent GAO decision, however, highlights that these two means of establishing prejudice aren’t always distinct.
Past performance is an important evaluation factor in many solicitations. Essentially, it allows an agency to guess as to the likelihood of an offeror’s successful performance under a solicitation by looking to its history of performance on similar projects in the past.
GAO recently confirmed it is “axiomatic” that past performance examples should align with the solicitation’s requirements. If an offeror submits unrelated examples, it risks a downgraded past performance score.
In a best value competition, when two offerors receive identical adjectival scores on the non-price factors, one might assume that the procuring agency would be required to award the contract to the lower-priced offeror.
Not so. In a recent bid protest decision, the GAO held that where two offerors received identical scores on three non-price factors, the agency could still elect to award the contract to the higher-priced offeror.
An agency has been caught creating fake source selection documents to pad its file in response to several GAO bid protests.
A recent GAO bid protest decision shows that, after award, the agency created new source selection documents and revised others, then pretended those documents had been part of the contemporaneous source selection file. And although the agency’s conduct resulted in the cancellation of a major procurement, it’s not clear whether the agency employees who created the fake documents will face any punishment.
The 2017 NDAA is full of important changes that will affect federal contracting going forward. As Steve wrote about earlier this week, some of these changes relate to government contracting programs (like the SDVOSB program). Still others relate to how the government actually procures goods and services.
One of these important changes severely limits the use of lowest-price technically-acceptable (“LPTA”) evaluations in Department of Defense procurements. Following the change, “best value” tradeoffs will be prioritized for DoD acquisitions. This post will briefly examine when LPTA procurements will and won’t be allowed under the 2017 NDAA.
In a best value tradeoff evaluation, a procuring agency must consider the benefits of a lower-cost proposal, even if that proposal’s cost is not as close to the agency’s internal cost estimate as a higher-priced proposal.
As demonstrated by a recent GAO bid protest decision, it is improper in a tradeoff analysis for an agency to refuse to consider the relative benefits of paying a lower cost for a lower-rated proposal.
I often caution would-be bid protesters that when it comes to “best value” procurements, the GAO gives agencies wide discretion to pay a price premium for a proposal evaluated as superior.
Case in point: a recent bid protest decision in which the GAO upheld the procuring agency’s decision to pay a whopping 72.6% price premium.