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Protesting Insufficient Documentation of Evaluation Decisions

Government agencies must document their evaluations decisions in sufficient detail to provide a reasonable basis to support an award. When a protestor challenges the reasonableness of the government’s evaluation in the form of a bid protest, adjudicative forums such as the Government Accountability Office (GAO) first question whether the government’s evaluation is adequately documented before determining whether the evaluation is consistent with the solicitation’s stated evaluation criteria. Therefore, when an agency fails to document its evaluation or retain evaluation materials, it bears the risk that there may not be sufficiently detailed supporting rationale in the record for the adjudicative forum to conclude that the government had a reasonable basis for the award decision. In such cases, the GAO will typically sustain the protest challenging the government’s evaluation decision and recommend that the agency reevaluate the proposals and sufficiently document its rationale. The adjudicative forum will also generally recommend that the procuring agency terminate the awarded contract for the government's convenience if as a result of the reevaluation, an offeror other than the awardee is in line for the award.

In B-422085; B-422085.2, a bid protest decision issued in January 2024, the GAO sustained such a protest and found that the evaluation record did not contain sufficient documentation to show that the Department of Homeland Security (DHS), Transportation Security Administration (TSA) reasonably evaluated the awardee’s prior experience factor. The request for proposal (RFP) was issued to contractors holding the General Services Administration’s (GSA) One Acquisition Solution for Integrated Services (OASIS) indefinite-delivery, indefinite-quantity (IDIQ) contract. The best value procurement was conducted to acquire property management support services under the fair opportunity source-selection procedures of Federal Acquisition Regulation (FAR) subpart 16.5. The RFP utilized five evaluation factors, with the prior experience factor considered the most important and price considered the least important evaluation factor. The RFP required offerors to provide detailed descriptions of prior projects of similar size and scope where the offerors had provided property management support services. Notably, the evaluation criteria in the RFP specifically provided that the TSA would assess the size and scope of the offerors’ prior experience descriptions to assign a rating of low, some, or high confidence.

TSA received two proposals in response to the RFP, with the awardee proposing a much lower price of approximately $19.5 M compared to the protestor’s price of roughly $27.7 M. While the awardee and the protestor were both assigned high confidence ratings in the prior experience factor, the awardee was assigned lower ratings for the technical factors. Among other arguments that were not all expressly addressed by the GAO, the protestor alleged that TSA unreasonably evaluated the awardee’s proposals, resulting in an improper best-value determination. The GAO agreed with the protestor in ruling that the record of evaluation of the awardee’s proposal did not permit the GAO to conclude that the agency reasonably considered the similarity of the size of the awardee’s prior experience examples to the procurement at issue. The GAO analyzed the TSA’s evaluation of each of the awardee’s three prior experience projects, concluding that the TSA’s evaluation focused almost exclusively on considering the scope of the awardee’s prior experience projects rather than their size. For instance, the GAO pointed out that the TSA’s evaluation report concerning one of the awardee’s prior experience projects contained little to no discussion of the size of that project compared to the requirement at issue. Similarly, the agency’s evaluation report did not discuss the dollar value of that prior experience project as compared to the property management support services that were being procured. The GAO also noted that the TSA’s evaluation report mostly restated language from the awardee’s proposal without further analysis or elaboration. The GAO pointed out that the awardee’s other two prior experience projects were approximately $ 12 M over 62 months of performance and $ 1.7 M over 14 months of performance. Meanwhile, the TSA’s independent cost estimate for the project was approximately $ 23.2 M over 60 months of performance, which meant that the solicited project was significantly larger in size than the awardee’s remaining two prior experience projects. GAO noted that TSA’s evaluation report failed to discuss or document why the size of these projects was considered comparable, and therefore, relevant to the value of the solicited effort.

In sustaining the protest, the GAO again emphasized that the agency’s evaluation record failed to adequately document that the TSA considered the size of the awardee’s prior experience efforts compared to that of the solicited effort in a manner consistent with the evaluation criteria in the RFP. Since the record failed to demonstrate that TSA evaluated the size of the awardee’s prior experience examples relative to the solicited requirement in making a relevancy determination, the GAO concluded that the TSA’s evaluation of the prior experience factor was unreasonable and improper. The GAO also pointed to the relative importance of the prior experience factor as compared to price and other factors in noting that since the prior experience factor was the most important, any potential downgrade in the evaluation of the awardee’s proposal under that factor could ultimately impact the source selection decision. Furthermore, the awardee’s proposal was also rated lower than the protestor’s in the technical factors. Therefore, in resolving any doubts in the protestor’s favor, the GAO determined that the protestor was prejudiced by the unreasonable evaluation of the prior experience factor. In its recommendation to the procuring agency, the GAO directed that the proposals be reevaluated, and the agency’s evaluation decision be adequately documented to support its conclusions. Furthermore, the GAO recommended that if the awardee’s proposal was no longer in line for award after the reevaluation, its underlying task order contract award be terminated for the government’s convenience.

When protesting the government’s evaluation decisions, protestors should be aware that procuring agencies are required to adequately document the evaluations underlying their award decisions. The government’s evaluation decisions must typically be supported by more than just conclusory statements that merely restate the evaluation criteria or language from an offeror’s proposal without further explanation or elaboration. In response to allegations of improper evaluation, adjudicative forums will typically review the evaluation record closely to ensure that the agency adequately documented its rationale in sufficient detail so that a review of the award decision is possible. Therefore, protestors should expressly point to the record if it lacks supporting documentation or evaluation rationale. If the record indicates that the procuring agency failed to adequately document its evaluation decision or otherwise retain evaluation materials, the adjudicative forum will likely sustain the bid protest and conclude that the government’s award decision was unreasonable and improper under the circumstances.

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.

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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.

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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.

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The General Services Administration (GSA) directs and manages the Federal Supply Schedule (FSS) program, which allows federal agencies to obtain commercial products and services through a simplified acquisition procedure under Federal Acquisition Regulation (FAR) part 8. When procuring services through the GSA FSS, government agencies use established procedures to place orders to pre-approved vendors, satisfying the Competition in Contracting Act’s (CICA) full and open competition requirements. In obtaining the FSS contract, service vendors provide functional descriptions for labor categories (LCATs) for the services they intend to offer via the GSA FSS. When procuring services through the GSA FSS, federal government agencies must ensure that the services are within the scope of an awardee’s applicable FSS contract LCATs. If the services being procured on the FSS task order are outside the scope of the awardee’s proposed LCAT functional descriptions, the award may be protested for being outside the scope of the vendor’s underlying FSS contract.

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When evaluating quotations or proposals, government agencies must rely solely on the evaluation criteria stated in the solicitation. That is, once the procuring agency informs prospective contractors of the criteria against which it will evaluate the proposals, the agency must adhere to the stated criteria. Furthermore, once the evaluation criteria are established, agencies are prohibited from giving importance to specific factors, subfactors, or other criteria beyond which prospective offerors would reasonably expect. Under Federal Acquisition Regulation (FAR) § 11.104, when conducting brand name or equal procurements, the procuring agency’s purchase description must include a general description of those “salient” physical, functional, or performance characteristics of the brand name item that an “equal” item must meet to be acceptable to receive an award. The FAR further instructs agencies to use brand name or equal descriptions when the salient characteristics are firm requirements. Therefore, quotations proposing “equal” items must be evaluated to ensure the offered items meet the stated salient characteristics of the brand name item. Consequently, the government’s evaluation of quotations may be protested for being improperly based on unstated evaluation criteria when the government fails to convey all the characteristics of the brand name item it considers “salient.”

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Protesting Insufficient Documentation of Evaluation Decisions

Bid Protest Insights