Infra Insight Blog

The Government Accountability Office’s (GAO) fiscal year 2024 report on federal bid protests includes useful insights into federal procurement trends that can help state and local government agencies mitigate bid protest risks. Among other findings, the GAO identified unreasonable technical evaluation, flawed selection decision, and unreasonable cost or price evaluation as the three most prevalent reasons for sustained protests. Examining the cases identified by the GAO for each of those reasons can help public owners understand procurement practice pitfalls that could expose them to protest.

Unreasonable Technical Evaluation

In Kauffman and Associates., Inc. (B-421917.2, B-421917.3), the GAO sustained a protest of a best-value award for certain training services. Specifically with respect to the technical evaluation, the GAO found the awarding agency erred by (i) evaluating proposals based on a criterion that was not clearly identified in the RFQ; (ii) allocating a “weakness” to one proposal for omitting required information, but not allocating a “weakness” to another proposal for omitting the same information; and (iii) crediting the winning proposal for meeting an RFQ requirement, when the proposal omitted the required information.

Flawed Selection Decision

In Washington Business Dynamics, LLC (B-421953), the GAO sustained a protest of a best-value tradeoff award for (ironically enough) procurement and acquisition support services.  The agency’s only documented support for deeming the proposals equal on non-price factors was a statement asserting the agency found the competing proposals demonstrated no major differences in technical solutions. The GAO found the documentation insufficient to justify the agency’s tradeoff decision because the documentation suggested the agency failed to perform a qualitative analysis of the proposals’ merits as required in tradeoff evaluations and by the RFQ’s terms.

Unreasonable Cost or Price Evaluation

In Criterion Corporation (B-422309), the GAO sustained a protestor’s objection to an agency excluding the protestor’s proposal from further consideration based on a failed price realism evaluation. The agency had found the protestor’s price unrealistic as the protestor proposed a greater number of full-time equivalents than other proposers submitting higher prices, but with only a slightly lower labor rate. The GAO found the agency’s decision to disqualify the protestor unreasonable because the agency failed to examine if the protestor could realistically perform the work for the proposed price since the agency had not considered differences in the protestor’s labor mix or technical solutions, which could have explained the lower price.

These cases highlight the importance of:

• Drafting clear evaluation criteria in solicitation documents.
• Following solicitation document evaluation criteria and legal requirements when evaluating proposals.
• Documenting justification for ratings and awards in a manner consistent with solicitation documents.
• Considering evaluation criteria in the same manner across different proposals.
• Avoiding making prejudicial assumptions about a proposal without considering the proposal in its entirety.

For the GAO’s Bid Protest Annual Report to Congress for Fiscal Year 2024, click here.