We at SmallGovCon have explored some examples of protests where an unfortunate oversight by a contractor has been the difference between winning and losing. This, of course, can be very frustrating to contractors, especially considering that federal agencies often get leeway where contractors wouldn’t. But federal agencies, too, make mistakes, and even simple ones can be enough for a successful protest. This was the case in a January 2023 decision by GAO.Continue reading
Tag Archives: evaluations
GAO: Proposal Strengths Must be Based on Solicitation Criteria, Not Merely Benefit to Government
Agencies often find unanticipated, innovative content in offerors’ proposals. And unsurprisingly, those proposals are often the ones selected for award. But a recent GAO decision reminds us that all strengths an agency assigns must be supported by the stated evaluation criteria.
In other words, the solicitation must thoroughly inform offerors of these evaluation criteria, and the agency must equally evaluate offerors under them. An offeror’s proposal should not get extra credit for proposing things that are not anticipated by or logically encompassed in the solicitation.Continue reading
SSA vs. SSEB: Protest Sustained Where Ratings Changes Weren’t Reasonable
In a best value acquisition, the final decision is typically made by a Source Selection Authority. But what happens when the SSA disagrees with the ratings assigned by the evaluators, such as a Source Selection Evaluation Board?
The SSA has a good deal of discretion, but that discretion isn’t unlimited. In a recent decision, GAO sustained a protest where the SSA’s disagreements with the SSEB didn’t appear to be reasonable.
Agency’s Conduct “An Egregious Example Of Intransigence And Deception,” Court Says
A procuring agency’s conduct in the course of evaluating proposals–and defending itself in four subsequent bid protests–was an “egregious example of intransigence and deception,” according to the Court of Federal Claims.
In a recent decision, Judge Eric Bruggink didn’t hold mince words, using terms like “agency misconduct,” “untruthful,” and “lack of commitment to the integrity of the process,” among other none-too-subtle phrases, to describe the actions of the Department of Health and Human Services. But Judge Bruggink’s decision is striking not only for its wording, but because it demonstrates the importance of good faith bid protests to the fairness of the procurement process, in a case where HHS unfairly sought to “pad the record” in support of a favored bidder–and would have gotten away with it were it not for the diligent efforts of the protester.
GAO: Past Performance Evaluation Must Heed Solicitation’s Definitions
The analysis of an offeror’s past performance is sometimes a crucial part of an agency’s evaluation of proposals. And an agency’s evaluation of past performance is ordinarily a matter of agency discretion.
Though broad, this discretion is not unlimited. An agency’s past performance evaluation must be consistent with the solicitation’s evaluation criteria. GAO recently reaffirmed this rule, by sustaining a protest challenging an agency’s departure from its own definition of relevant past performance.
Court: Past Performance Evaluations Must Be Adequately Supported
Past performance evaluations are a vital part of many federal procurements. Generally, the evaluation of an offeror’s past performance is a matter within the discretion of the contracting agency. But if an agency fails to adequately support its past performance evaluation, its findings cannot be upheld.
The United States Court of Federal Claims recently applied this rule, when it sustained a protest to an agency’s past performance evaluation because the evaluation failed to address the stated evaluation factors. In doing so, the Court provided guidance to both offerors and agencies as to a proper past performance evaluation.
GAO: Agency Need Not Raise Offeror’s High Price In Discussions
When an agency decides to hold discussions with offerors, must it discuss with an offeror the price proposed for the contract? Not unless that offeror’s proposed price is so high as to be unreasonable.
As the GAO held in a recent bid protest decision, unless an offeror’s price is so high as to make its proposal unacceptable, the offeror is not entitled to be informed during discussions that its price is too high–even if the price is significantly higher than competitors.