Protesting Award Decisions Due to Agency Misevaluations

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.

Another typical instance where adjudicating forums often sustain protests involves poorly documented agency award decisions. To be considered reasonable, the agency’s award must be well-documented. In B-421196, another post-award protest decision issued in January 2023, GAO sustained the protestor’s challenge, finding that the agency failed to adequately document its evaluation of the prior experience factor, prejudicing the protestor. The solicitation was issued to establish a Blanket Purchase Agreement (BPA) for an Acquisition Management System set aside for small businesses under FAR 8.4 GSA Federal Supply Schedule. The protestor argued that in evaluating the prior experience factor, the agency failed to adequately justify assigning a lower confidence rating to the protestor than the awardee. The only contemporaneous record of the agency’s evaluation of the prior experience factor was limited to a chart briefly summarizing the agency’s conclusions to the offerors’ prior experience factor submissions. While the chart included a column for documenting notes from the evaluation team, there were no such notes for the awardee. Ultimately, the agency's counsel tried to argue in favor of the different prior experience ratings given to the protestor and the awardee. However, the GAO found these arguments legally and factually insufficient, labeling them as post-hoc rationalizations not deserving much consideration. The GAO justified its decision by explaining that the arguments made by the agency's counsel after the protest did not just fill in previously unrecorded details but added conclusions not mentioned in the evaluation record or the source selection decision.

An agency award decision can also be unreasonable if the evaluation is inconsistent across different proposal sections. This may be especially applicable when a large evaluation team evaluates voluminous proposals for complex contracts. In such scenarios, different members of the evaluation team may evaluate similar aspects of the offerors’ proposals differently. Additionally, evaluators may exaggerate the importance of a particular factor beyond its stated importance in the request for proposals (RFP), which would also make the award decision unreasonable. Contractors may find it more challenging to prevail in post-award protests alleging agency misevaluation of proposals than in pre-award scenarios due to the discretion afforded to agency evaluation decisions. However, when successful, corrective actions in post-award misevaluation protests often impact the protestor’s chances of receiving the contract award more directly.

This Bid Protests Insight provides a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.