Attacking Agency Evaluations – It Can Be Done
April 17, 2013
By: Lindsay Simmons
A recently publicized GAO decision, IBM Corp., U.S. Federal, B-406934 et al., provides a window into how IBM successfully challenged a Veteran’s Administration award to HP Enterprise Services, LLC (“HP”) in a best value procurement where technical factors were significantly more important than price. According to IBM, the agency misevaluated proposals, erroneously concluding that IBM did not offer the same features as HP. These features were the basis upon which the agency justified the cost premium associated with HP’s proposal and, therefore, selected HP for award.
While GAO began its analysis of the protest by reminding the parties that it does “not independently evaluate proposals” but, rather “review[s] the agency’s evaluation to ensure that it was reasonable and consistent with the solicitation’s evaluation scheme and applicable status and regulations,” the opinion reads suspiciously like a reevaluation. GAO took a close look and found that (i) the agency misunderstood what was being offered by IBM, (ii) the record showed that both offerors proposed similar solutions and, therefore, (iii) the agency’s evaluation finding – that HP’s proposal offered benefits that IBM’s proposal did not – was not supported by the record.
According to GAO, “the agency has not identified any aspect of the HP proposal that distinguishes it from IBM’s on the question of relative benefit of its proposed [ ] system”, nor was the agency able to direct GAO’s attention “to any portion of the evaluation and source selection record that explains or otherwise elaborates on the conclusory statements relating to the alleged superiority of HP’s solution.”
Interestingly, the record in this protest included two source selection decision documents – one prepared at the time the agency made its selection and a second one prepared by the agency after IBM filed its protest. Not surprisingly, IBM argued that the new selection decision, prepared in the heat of litigation, could not be relied on by the agency to fix problems in its initial selection document. GAO agreed, reminding us that it always accords greater weight to contemporaneous source selection materials than those made in response to protest arguments.
IBM succeeded here largely because it was able to identify specific technical discriminators relied upon the agency in making its award decision, and to demonstrate that its proposal contained the same or equivalent technical offerings. General, broad claims of improper evaluation rarely succeed. But GAO remains sympathetic to – and willing to act on – narrow, targeted challenges demonstrating unreasonable and/or erroneous evaluation results.
Lindsay Simmons is the attorney responsible for the content of this article.