Contractors frequently find that their technical proposal evaluation contained some level of error. A GAO protest can be sustained if you can show that the agency failed to reasonably evaluate your technical proposal writing risk in accordance with the terms of the solicitation. This aspect of filing can be tricky because the agency has significant latitude in determining its risk.
GAO does not have the authority to make that decision for the agency. Many solicitations clearly show that technical proposals will be rated depending on the level of risks the agency sees in your proposal.
This can create an avenue in your protest to show why you should have received a different technical rating. In other words, the agency must follow its evaluation criteria.
When the agency does not adequately document the record to allow GAO a meaningful review of the agencies assessment of your technical proposal evaluation risk, you can be ahead in the bid protest process. Unfortunately, unless your attorney is admitted to a protective order, you will not get to see the agency’s records.
Technical Proposal Evaluation Risks Evolve from the Solicitation’s Rating Criteria
Depending on how the agency structures the solicitation, your proposal writing efforts should focus on the main factors and subfactors. A common mistake made by agencies is when technical proposal evaluation risks are not resolved despite discussion, yet the agency assesses no technical risks in the final evaluation. See information about protesting technically unacceptable proposals.
Government contract and bid protest law state that the evaluation of your proposal is a matter within the agency’s discretion. However, if the agency’s judgment were reasonable and inconsistent with the stated evaluation criteria and applicable procurement statutes and regulations, GAO should sustain your bid protest.
GAO cannot substitute its judgment for that of the agency, but will sustain a protest where the agency’s conclusions are inconsistent with the solicitation’s evaluation criteria, undocumented, or not reasonably based. Therefore, you have to assert in your bid protest letter that the agency failed in all of these areas.
In many RFP’s, technical proposal risk evaluations include the risk associated with the technical approach in meeting the requirement. This can include assessments of potential for disruption of schedule, an increase in costs, degradation of performance, the need for increased Government oversight, or the likelihood of unsuccessful contract performance. Therefore, your technical proposal should minimize such risk during the writing stage.
Agency Documentation of Technical Proposal Evaluation Risk
There is no doubt that during bid protest litigation, government contracting agencies will always try to justify its decision to give you a higher technical proposal evaluation risk. The final question, however, is whether the documentation in the source selection record supports such a decision. In recent cases, GAO has increased the opportunity, through hearings, to allow agencies to supplement the record through testimony.
Although an agency is not required to keep every document generated during its evaluation of your proposal, the agency’s technical proposal evaluation must be sufficiently documented to allow GAO to review the merits of a protest.
Contractors typically ask why would the agency be allowed to supplement the record if they have adequate documentation? The answer lies with GAO’s discretion.
There is case-law that suggests that where an agency fails to document or retain evaluation materials, it bears the risk that there may not be adequate supporting rationale in the record for GAO to conclude that the agency had a reasonable basis for its source selection decision. This was GAO’s ruling in Navistar Def., LLC; BAE Sys., Tactical Vehicle Sys. LP, B-401865 et al., Dec. 14,2009, 2009 CPD ¶ 258 at 13.
At the end of the day, it is up to you to make sure that your approach focuses on the rating criteria for technical proposal risk evaluations. Explain how you intend to perform the work, identify obvious hurdles during performance, then tell the agency how you plan on overcoming the risk. This is also true for staffing proposals. To stand a chance of prevailing in a bid protest, your technical proposal should address why your proposed staffing level and amount of proposed hours will get the job done, given the potential risks.
For help with your government proposal writing, or help legal representation with your COFC or GAO protest litigation about your technical proposal evaluation, call our bid protest attorneys at 1-866-601-5518. FREE INITIAL CONSULTATION.