• Joshua Duvall

GAO Sustains Pre-Award Protest Where Evaluation Criteria and Adjectival Ratings Conflict

Recently, the U.S. Government Accountability Office ("GAO") sustained a bid protest challenging a solicitation's experience factor where "the evaluation criteria and adjectival ratings conflict regarding the basis on which proposals will be evaluated." The GAO's bid protest decision is instructive because it contains a number of interesting protest arguments and highlights the GAO's standard of review when reviewing pre-award solicitation challenges.


The protest of IDS International Government Services, LLC, B-419003; B-419003.2, November 18, 2020, 2020 CPD ¶ ___ involves a protester's challenge to the Department of Army's request for proposals ("RFP") for operations and maintenance (O&M) services in Afghanistan. [1] The RFP contemplated an IDIQ award with a 1-year base period of performance and a 1-year option. Proposals would be evaluated on price and four non-price factors: (1) experience, (2) phase-in and organization plan, (3) management and technical approach, and (4) past performance.


The protester challenged several aspects of the RFP, including a conflict between the evaluation criteria and adjectival rating scheme under the experience factor. [2]


Relevant here, the experience factor's proposal instructions provided that, "[t]he offeror shall demonstrate its capability that it has performed services in the [Central Command Area of Responsibility (CENTCOM AOR)] that were similar to the types of services contemplated by this solicitation as described in the PWS." Similarly, the evaluation criteria provided that the Army would evaluate an offeror's experience and that it would rate the relative depth of their experience with projects in similar magnitude ($5 million) over the past six years, placing a "greater weight" on a proposal that demonstrated:


  • Projects performed in Afghanistan;

  • Projects performed for the U.S. Government in Afghanistan;

  • Projects similar to the types of services contemplated by this solicitation greater than $10 million;

  • Project or projects that demonstrate simultaneous work in more than two locations;

  • Projects that demonstrate the appropriate type of experience and are 100% complete.


In addition to the experience factor's proposal instructions and evaluation criteria, the RFP also contained an adjectival rating scheme that focused on the offeror's "approach and understanding of the requirements" in the RFP. For example, an offeror would receive an outstanding/blue rating where its "[p]roposal indicates an exceptional approach and understanding of the requirements and contains multiple strengths, and risk of unsuccessful performance is low."


Here, the protester's argument was relatively straightforward. The protester argued that the evaluation scheme under the experience factor had conflicting language, which rendered the RFP unreasonably ambiguous. Specifically, while the proposal instructions and evaluation criteria focused on an offeror's experience, the adjectival rating scheme focused on an offeror's "approach and understanding" of the RFP requirements.


The Army, on the other hand, argued that no conflict existed between the evaluation criteria and adjectival ratings "because the adjectival ratings anticipate that the agency will assess an offeror’s understanding based on its experience." The Army also argued that there was no basis for GAO to find that the RFP was ambiguous "because [GAO's] decisions have explained that adjectival ratings are only “guides for intelligent decision-making in the procurement process.”


Ultimately, GAO sustained the protest, finding that the experience factor was ambiguous because of the conflict between the evaluation criteria and the adjectival ratings. GAO determined that neither the proposal instructions nor the evaluation criteria contemplated an offeror's "approach" to the RFP requirements, which created an ambiguity regarding the basis for evaluation. In summing up it's position, GAO concluded that:


  • regardless of how the award decision ultimately utilizes the adjectival ratings assigned, it is unclear whether offerors will be evaluated based solely on the information requested for this evaluation factor--i.e., experience--or whether offerors will also be evaluated based on different information concerning their understanding and approach to the requirements.


Takeaway


The pre-award protest is a powerful tool for contractors. Indeed, pre-award protests can be used to challenge ambiguous terms, unreasonable evaluation methods, or language that unduly restricts competition. As shown above, where a discrepancy exists that could impact proposal evaluations, a contractor should consider pursuing a pre-award bid protest to remedy the issue. [3] As a reminder, and generally, where a contractor fails to challenge the terms of a solicitation prior to the proposal submission deadline, it loses the right to advance that challenge after the fact (i.e., during a post-award protest).


__________


[1] See 4 C.F.R. § 21.2(a)(1) ("Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals.")


[2] Notably, prior to filing its protest at GAO, the protester filed an agency-level protest challenging the solicitation terms. The Army denied the agency-level protest.


[3] Also, the Q&A process is another tool that contractors can use to potentially cure any perceived ambiguities.


. . .


#govcon #bidprotest


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