Wednesday, March 28, 2012


GAO recently sustained another protest in which the Army failed to evaluate proposals solely on the factors identified in the solicitation.  GAO recommended reevaluation and, if necessary, discussions and revised proposals.  Costs and fees to be paid to the protester.  We continue to report on these GAO decisions to make the point that evaluation criteria must be clearly stated and scrupulously followed in the source selection process.

The protester complained that the Army unreasonably found the successful awardee's proposal satisfied the minimum requirements for key personnel experience at an accredited hospital.  The requirement stated the length of continuous experience at a particular type of accredited hospital.  GAO found the successful awardee's proposed key personnel fell short of the requirement.  Offerors were informed that award would be made on a LPTA basis but listed several evaluation criteria to be judged on a pass/fail basis.

GAO stated agencies are required to evaluate proposals based solely on the factors identified in the solicitation and they must adequately document the bases for their evaluation conclusions.  Agencies may evaluate on a basis not expressly presented in the solicitation but there must be a clear connection between the stated criteria and the unstated considerations.  GAO does not second guess agencies but it will question the agency's conclusions where they are inconsistent with the solicitation criteria, are undocumented or are not reasonably based.

The case also involved an alleged violation of the Procurement Integrity Act (an Army employee leaked documents to an offeror other than the protester), but GAO denied that aspect of the protest.  The Army investigated the matter and determined that the documents involved were publicly available and not procurement sensitive information.  Furthermore, GAO found the protester was not prejudiced by any alleged disclosure of the information.  "Even where a protester shows an actual or potential violation of the PIA, our inquiry does not end there.  Rather, the question becomes whether the alleged PIA violation created an infair competitive advantage."  Competivie prejudice is an essential element of a winning protest.

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