HOW TO WIN A GAO PROTEST

A recent GAO decision (B-415497) provides a roadmap for how to win a GAO protest.  The solicitation provided for award on a best value basis with technical factors more important than price.  The protester complained that the award was made to the offeror with the lowest price, essentially converting the best value evaluation scheme to lowest priced, technically acceptable (LPTA).  The solicitation also provided that the agency would evaluate strengths and weakness of the various proposals.

(The case reminds us of the importance of parsing the language of the evaluation factors in a solicitation.  The first thing a contractor should do when receiving a solicitation is examine the evaluation factors.  If there are errors, omissions or ambiguities, raise them with the contracting officer and if they are not corrected, protest.  Then, build the response to the solicitation on the framework of the evaluation criteria.)

GAO's roadmap to a successful protest starts with the often repeated rule that in reviewing an agency's decision, GAO will examine the supporting  record to determine if it was reasonable and consistent with the solicitation's evaluation scheme and applicable law.  Then the evaluation of proposals must be based on a qualitative assessment consistent with the evaluation factors. Where a solicitation provides for a tradeoff, even where price is the least important factor, an agency may select the lowest priced, lowest rated technically if the agency reasonably concludes that a price premium is not justified.

However, if the tradeoff analysis fails to provide a meaningful explanation as to why a higher rated proposal does not offer technical advantages or why those technical advantages are not worth the price premium, the agency has not sufficiently documented and therefore justified awarding to the lowest priced, technically inferior offeror.  The rule is of particular importance where price is less important than the technical factors.  Finally, the source selection decision must be robust.  It must provide a substantive analysis and comparison of the offerors' proposals and a thorough rationale for the determination that the higher rated, higher priced proposal is not worth a price premium.

In sum, most protests are won if the protester can show the evaluation factors were not followed and the source selection decision was inadequate.  All the more reason to release the source selection decision at the debriefing stage.

bill@spriggsconsultingservices.com