Veterans of the bid protest process know that it’s not uncommon for a protester to make half a dozen arguments and prevail on only one.
Know what that’s called? A win. But when a protester goes seven for seven, you have to tip your cap.
A GAO protest can rest on a number of different grounds. One of the most fertile, however, is disparate treatment. That is, GAO is particularly sensitive to arguments that a procuring agency wasn’t even-handed in evaluating the same features or omissions in competing proposals.
Bid protests are an important part of the federal government’s procurement system. Why? Because sometimes agencies really get the evaluation wrong. They read non-existent requirements into the solicitation; give credit where none is due; and adjust an offeror’s price without forewarning.
Thankfully, in those cases, we have GAO to make course corrections.
Many federal construction contractors know that contract changes can be frustrating business. Changes can be unilateral or bilateral. They can stress a contractor’s finances. They can delay the overall project. And they can result in animosity between the agency and a contractor.
Fortunately, GAO has shined some light on the problems in the contract change process. Indeed, in a recent report, GAO concluded that agencies, particularly the Army Corps of Engineers and GSA, need to develop better systems to collect data about changes in construction contracts.
In evaluating proposals, an agency will sometimes use “adjectival ratings” (e.g., Excellent, Good, Acceptable) to describe its assessment of a proposal or portions of a proposal. But, importantly, an agency cannot evade its responsibility to reasonably evaluate proposals–based on the articulated evaluation criteria–by deferring solely to the assigned adjectival ratings.
In other words, if the agency doesn’t perform a true qualitative assessment, but instead relies on mere labels to make its ultimate award decision, GAO will likely slap the agency’s hand.