If You Want To Get Technical About It: Top Protest Ground
August 10, 2015
By: Lindsay Simmons
The most common ground for a successful protest is an agency’s flawed evaluation of technical proposals. Indeed, flawed technical evaluations are the basis for the Government Accountability Office (GAO) sustaining at least half of all successful protests.
In most of these protests, the agency’s misstep with respect to the technical evaluation is based upon a failure to follow the solicitation’s evaluation criteria. Of course a failure to follow the solicitation’s evaluation criteria can also come in the form of missteps regarding the agency’s evaluation of offerors’ past performance and/or the agency’s cost/price analyses. But by far the most common basis for successful protests relates to the technical evaluation.
Does this come as a surprise? Our candid answer is “yes”, since GAO generally gives great deference – bends over backwards to accept – an agency’s technical evaluation and attendant ratings of proposals. That said, if a protester can show that an agency’s technical evaluation is contrary to the solicitation criteria or is otherwise irrational, unreasonable, or undocumented, it will have a successful protest and obtain either voluntary corrective action by the agency or a favorable decision by the GAO.
However, challenging the technical evaluation can be very tricky depending upon how much information a disappointed offeror receives during the debriefing. Some agencies provide bare bones debriefings that make it almost impossible to determine how they arrived at their evaluation and award decisions. In fact often, unless/until a protester’s counsel receives and reviews the agency’s evaluation record, a disappointed offeror has limited evidence to support a protest of the technical evaluation. In such cases, care must be taken to allege everything that is known, or believed/understood, in order to present sufficient allegations in the initial protest to withstand a motion for summary dismissal. Then, once protester’s counsel receives the agency record, they will be able to file a supplemental protest with additional facts and bases for protest discovered through their review of the record.
Lindsay Simmons is responsible for the contents of this Article.
© Jackson Kelly PLLC 2015