In The Government Contractor’s recent Feature Comment, “The Most Prevalent Reason Why GAO Sustained Bid Protests in FY 2013” (56 GC ¶ 225), Dickstein Shapiro government contracts attorney Joseph R. Berger analyzes all bid protests sustained by GAO in FY 2013, demonstrating that the most prevalent reason for sustained protests was an agency’s flawed evaluation of a technical proposal. A flawed technical evaluation was the basis for a sustained decision in at least half of the sustained decisions issued by GAO in FY 2013, and in about half of the protests (counted by B-number) sustained by those decisions.

According to GAO’s annual report, the most prevalent reason for sustained protests during FY 2013 was an agency’s failure to follow the solicitation evaluation criteria, which would generally encompass most flawed technical evaluations. But this reason can be described more precisely in alternative categories, because the failure to follow evaluation criteria may take place in a technical, past performance, or cost/price evaluation, or with respect to another criterion. The most common such finding among GAO’s FY 2013 sustained decisions involved the evaluation of a technical proposal, according to Berger’s informal survey of the sustained decisions and their digests.

This observation may be surprising to many participants in the protest system because GAO generally gives deference to agency technical evaluations and proposal ratings. However, if an agency technical evaluation is contrary to the solicitation criteria or is otherwise irrational, unreasonable, or undocumented, it can be successfully challenged in a GAO protest and become the basis for corrective action or a sustained decision.

What are the implications for companies considering a bid protest based on technical evaluation issues and for agencies facing those protests? Among the many protest grounds that may be asserted to GAO, if a company has a good faith basis to challenge the agency’s evaluation of its technical proposal, or the evaluation of a competitor’s technical proposal, GAO will take those good faith allegations seriously, and can sustain a protest if the allegations prove to be supported by the agency record.

After the attorneys for the protester receive the evaluation record, they must determine whether the original allegations are supported and whether supplemental protest grounds exist based on any aspect of the evaluation, including the technical evaluation. Frequently, protest grounds concerning a competitor’s proposal or evaluation cannot be advanced by counsel until the agency record is produced. Because protected information concerning the evaluation cannot be communicated to the protesting company, its counsel must understand the technical issues addressed by the evaluation in order to assert any critical new grounds of protest that may exist.

Given that the protester seeks to win not only the protest, but the contract award as well, the protester should advance arguments that may convince the agency, as well as GAO, that the protester is correct. If an agency can fully understand that it has failed to evaluate the proposals in a manner consistent with the evaluation criteria or has otherwise made a prejudicial error in the evaluation of proposals, it may be willing to take corrective action to address a flawed technical evaluation. Prior to GAO’s decision, agencies should take these allegations seriously and review them fairly, and should consider corrective action as a good faith means to remedy a flawed evaluation, in order to promote the fairest competition and to reach the best award decision for the Government.