As regular SmallGovCon readers surely know, federal agencies have a great deal of discretion when procuring products and services. Protesters are often facing an uphill battle in attempting to demonstrate an agency abused that discretion in making an award. This is because typically, so long as the agency properly documents its decision making process, sticks to the solicitation terms, and there is documentation in the record that reasonably supports the agency’s decision, GAO will rule in the agency’s favor. Nevertheless, there are occasions when the agency will apply evaluation criteria unevenly, or base its decision on facts or considerations that are not allowed under the Solicitation. This is precisely what happened in a recent GAO protest which resulted in a win for the protester, and serves as a great reminder for contractors as to what situations may result in a successful bid protest.
Continue readingTag Archives: unequal evaluations
In Recent Decision, GAO Finds Agency Documentation Lacking
When choosing the most appropriate awardee for any federal contract, agencies are required to fully document all procurement decisions and their rationale, especially when those decisions could narrow the competition.
In Soft Tech Consulting, Inc., B-416934 (Comp. Gen. Feb. 1, 2019), GAO held that the Department of Homeland Security failed to adequately document its evaluation decision in a procurement for software development services and recommended that DHA reevaluate all offers from square one.
Continue readingWeaknesses Cannot Be Assigned Unequally, GAO Confirms
An unequal evaluation can get an agency into hot water and force a reevaluation, as GAO has stated before. But with agencies entitled to broad discretion in their evaluations, how do you know what constitutes unequal evaluation?
Some GAO opinions can leave you wondering where the line is drawn, but a recent GAO decision provides an easy-to-understand example involving a requirement to train personnel under certain regulations. In that case, the GAO held that it was improper for the agency to assign a weakness to the protester for omitting a discussion of certain regulations as applied to its training program, while failing to assign weaknesses to several awardees whose proposals also omitted this discussion.
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.
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.
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 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.