Unsuccessful contractors may challenge contract award decisions on the grounds that the agency misevaluated proposals, which prejudiced the protestor. Experienced contractors understand that in post-award protest cases, the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) do not replace their opinions or the protester's viewpoints with the agency's evaluation. Instead of reevaluating offerors’ proposals, the agency record is examined to determine whether the source selection decision was reasonable and whether the agency’s evaluation was consistent with the solicitation’s evaluation criteria. That is because the evaluation of proposals is considered squarely within the agency’s discretion. Thus, even if there are two or more reasonable subjective interpretations or positions on technical evaluation details, the agency’s evaluation position will prevail as long as it is reasonable and consistent with the stated criteria.

It should be noted, however, that the agency’s evaluation is only afforded discretion so long as the award is reasonable and consistent with the terms of the solicitation. In B-421567; B-421567.2, a 2023 protest decision, the GAO sustained a protest challenging the agency evaluation of the awardee’s proposal after finding that the agency failed to evaluate technical proposals consistent with the solicitation’s evaluation criteria. In that post-award protest involving the award of a task order under the Army’s ITES-3S IDIQ contract on a best-value basis, GAO found that it was unreasonable for the agency to evaluate the awardee’s technical proposal as meeting the requirements when the awardee’s IDIQ level labor categories did not fully meet the task order solicitation’s position requirements. In its decision, the GAO additionally found that the protestor was prejudiced by the Agency’s failure to enforce the solicitation requirements when evaluating the awardee’s proposal because had the protestor known that the agency would accept labor categories that did not fully meet the requirements of the task order, the protestor could have proposed less qualified labor categories, thus achieving cost-savings and lowering its total evaluated price in the process.

The presumption of good faith presumes that government officials carry out their obligations during the performance of a government contract in good faith. The presumption is at its strongest when contractors allege quasi-criminal wrongdoing by government personnel acting in the course of their official duties. To overcome the presumption of good faith in this context, contractors must present “well-nigh irrefragable” proof. In other words, contractors must present evidence that cannot be refuted or disproved. Compared to the three standards of proof generally recognized by courts, the “well-nigh irrefragable” proof standard is the closest to the clear and convincing standard. This standard imposes a heavier burden on the contractor than imposed by the preponderance of the evidence standard but a somewhat lighter burden than requiring proof beyond a reasonable doubt, reserved for criminal cases. Clear and convincing evidence has also been described as evidence that produces an abiding conviction in the mind of the judge that the truth of the factual contention is highly probable.

The presumption of good faith can be difficult to overcome when applied in the context of allegations of quasi-criminal wrongdoing by government officials. Nevertheless, contractors may meet the “well-nigh irrefragable” proof standard if they present evidence of the government’s specific intent to injure the contractor. Such evidence may include government actions that amount to bad faith. Bad faith actions are motivated by malice, animus, conspiracy, or otherwise part of a course of governmental conduct designed to be oppressive. In the absence of evidence of the government officials’ specific intent to injure it, the contractor will find it challenging to overcome the strong presumption that the government’s administrative actions are correct and taken in good faith. Overcoming the presumption of good faith may be particularly difficult when a significant amount of time has passed between the occurrence of the underlying events and the contractor’s subsequent allegations of bad faith.

For its bid protest function, the Government Accountability Office (GAO) has strict timeliness rules for protest submissions. These timeliness rules are designed so that protestors may receive an effective and efficient resolution to their bid protests without unduly jeopardizing or delaying the procurement at issue. Protestors must file pre-award protests based on alleged improprieties in a solicitation before the time established for the receipt of proposals. Meanwhile, all other protests must generally be filed within ten calendar days of when the protestor knew or should have known about the basis of the protest. However, there is a debriefing exception to these general timeliness rules, which ensures contractors have an opportunity to understand the basis for their loss before deciding to protest. Under 4 C.F.R. § 21.2, this exception applies to procurements involving competitive proposals under which a debriefing is required and requested. The debriefing exception allows protestors to bring protests within 10 days of the required and requested debrief, therefore potentially extending the timeline under which a protest concerning competitive proposals may be brought at the GAO. The term “competitive proposals” is a term of art in government contracts parlance and is not expressly defined by statute or regulation. Competitive proposals involve negotiated procurement procedures that contemplate the creation of a competitive range of offerors before awarding the contract to the offeror that presents the most advantageous solution. Notably, the debriefing exception only applies to competitive proposals.

U.S. federal agencies conduct realism analyses on cost-reimbursable contracts to determine whether costs in a prospective contractor’s proposal are realistic and consistent with the proposed technical solution. Under such contracts, the government must pay contractors all actual and allowable costs, regardless of the proposed costs. Proper realism analysis helps the government determine whether the contractor’s proposed costs are so low that they fail to reflect a clear understanding of the solicitation’s requirements. Since contractors may submit artificially low bids on cost-reimbursable contracts to gain a competitive advantage, cost-realism analysis is necessary to ensure performance under these contracts is not compromised. In recent years, such contractor strategies have also contributed to the government’s shift away from the use of cost-reimbursable contracts. The Federal Acquisition Regulation (FAR) § 15.404-1(d)(2) outlines the requirements of cost realism analysis under such contracts to determine the probable cost of performance. Under FAR § 15.404-1(d)(3), cost realism analysis may also be utilized under limited circumstances in certain fixed-price contracts when new or complex requirements still need to be fully understood. Contractors may challenge the adequacy of the government’s cost realism analysis in a post-award bid protest by alleging that the agency failed to conduct a cost realism analysis or did not conduct such an analysis on a reasonable basis.