Prospective contractors may raise pre-award protests challenging solicitations that contain flawed evaluation methodologies. While the government has discretion in selecting the appropriate evaluation methodologies for fulfilling its procurement needs, the stated evaluation scheme must generally provide a meaningful basis for differentiating between offerors, while supporting a reasonable award decision. Pre-award protests that challenge the government’s evaluation methodologies are distinct from post-award protests filed due to flawed agency evaluations or disparate treatment of offerors. Such pre-award challenges are raised in response to the agency's planned approach to evaluate one or more solicitation factors, rather than a failure to adequately evaluate the proposals.

While it is within the agency’s discretion to select an appropriate method to assess offeror pricing, the agency may not use an evaluation method that produces a flawed or misleading result. In B-409872.2, the GAO sustained a pre-award bid protest because it found that the solicitation’s price evaluation methodology could produce misleading evaluation results when analyzing the competitiveness of price proposals. The solicitation issued by the Defense Commissary Agency (DeCA), contemplated an indefinite-delivery requirements contract for fresh fruit and vegetables for military commissary stores in South Korea, Japan, and Guam. The commissary stores provided groceries and household items to members of the military and other authorized patrons. The incumbent contractor responsible for fulfilling the fresh fruit and vegetables requirement for the commissary store protested the solicitation terms for allegedly containing a flawed pricing evaluation methodology.

Under best-value evaluation schemes, government evaluators are typically required to qualitatively assess the offerors’ proposals based on the stated evaluation criteria in the solicitation to determine which proposal represents the best value to the government. If the evaluation scheme provides that the procuring agency would evaluate the “extent” to which a proposal meets a particular requirement, offerors may reasonably expect that their proposal exceeding the government’s stated requirements would be evaluated more favorably than a competing proposal that meets the minimum requirements. In such best-value procurements, the agency must usually identify and assess potential discriminators between the offerors’ proposals in addition to evaluating whether the proposals are acceptable under the stated criteria in the RFP. Disappointed offerors may challenge a procuring agency’s best-value determination as flawed when one or more underlying evaluations upon which that tradeoff analysis is based are unreasonable.

In B-421871.3; B-421871.4, the Government Accountability Office (GAO) sustained a bid protest implicating these best-value evaluation principles in a Department of Homeland Security (DHS) procurement for financial and program management support services. The underlying task order (TO) was issued in support of the Countering Weapons of Mass Destruction (CWMD) Office under DHS’ Program Management Administrative, Operation and Technical Services II (PACTS II) indefinite-delivery, indefinite quantity (IDIQ) contract. The request for proposal (RFP) contemplated a time-and-materials (T&M) award to be issued on a best-value basis upon the consideration of four factors. The “technical capability and approach” was the most important non-price factor followed by “management approach” and “past performance” factors in decreasing order of importance. The non-price factors, when combined, were considered more important than the “price” factor. Furthermore, the RFP’s evaluation criteria outlined an adjectival confidence ratings framework for the evaluation of non-price factors, with “High Confidence” being the highest possible adjectival rating. The RFP also provided “positive” and “negative” evaluation elements that were assigned when an offeror’s proposal demonstrated an understanding (or lack thereof) of RFP requirements. Evaluators were also required to consider the soundness of the offerors’ proposed approaches to accomplish the relevant objectives.

The Government Accountability Office’s (GAO) bid protest regulations require protesters to provide a detailed statement of the legal and factual grounds of protest. While the GAO does not require protesters to file formal briefs or other technical forms of pleadings or motions, protesters must nevertheless file concise and logically arranged protests that clearly state legally sufficient protest grounds. On July 14, 2025, the GAO submitted a proposal in response to Section 885 of the Servicemember Quality of Life Improvement and National Defense Authorization Act for Fiscal Year 2025, clarifying and enhancing its pleading standard. While this new pleading standard is not a significant change from the previous standard, it provides added clarification that protesters’ bare allegations are insufficient to meet GAO’s pleading requirements. Under this new standard, protesters must provide, at a minimum, credible allegations that are supported by evidence and are sufficient, if uncontradicted, to establish the likelihood of the protester’s claim of improper agency action. Stated another way, protesters must provide more than a bare allegation, such that the allegation is supported by some explanation and evidence that establishes the likelihood the protester will prevail in its claim. In practical terms, the GAO will continue to dismiss protests or specific allegations within that are based on speculation, factual inaccuracies, or flawed legal assumptions.

It is a fundamental tenet of government contracts that procuring agencies treat all offerors equally. In this regard, adjudicative forums have long held that procuring agencies must provide all offerors with a common basis for preparing and submitting proposals. Such equal treatment necessarily requires the government to evaluate proposals of all offerors impartially and evenhandedly against the solicitation requirements and the evaluation criteria. Furthermore, once the evaluation is complete, agencies must adequately document their award decision, which should reflect the equal application of the stated criteria to all proposals. If an agency disparately evaluates offerors with respect to the same solicitation requirements, it may be subject to a post-award protest. The Government Accountability Office (GAO) reviews protests alleging disparate treatment by examining the record to determine whether the agency’s evaluation decision was reasonable and in accordance with the evaluation factors provided in the request for proposals (RFP). The GAO will sustain the protest and typically recommend a reevaluation if it determines that the agency treated the offerors’ proposals disparately or unequally, such as by evaluating the protester’s proposal using a stricter standard than the awardee’s proposal.