Winning a GAO Protest, Part I: Inside a Successful GAO Bid Protest—Unreasonable Technical Evaluation

By Howard W. Roth and Sarah K. Carpenter of Smith Currie Oles
Originally published March 10, 2025

On November 14, 2024, the Government Accountability Office (“GAO”) published its Bid Protest Annual Report to Congress for Fiscal Year 2024. The GAO report, which is mandated by the Competition in Contracting Act (“CICA”), includes key data and analytics which provide valuable insight into current bid protest trends and developments at the GAO. Notably, the GAO report identifies the top three most common reasons for sustaining protests in FY 2024: (1) unreasonable technical evaluation, (2) flawed selection decision, and (3) unreasonable price evaluation. GAO’s report provides decisions as examples of each common sustained protest ground.

This series, Inside a Successful GAO Bid Protest, covers in detail each of these three most prevalent protest grounds focusing on the decisions cited by GAO in their annual report, beginning with Part I: Unreasonable Technical Evaluation. We address circumstances where the agency did not reasonably assess the technical evaluation of proposals under the terms of its own solicitation discussing GAO’s cited decision, Kauffman and Assocs., Inc., B-421917.2, B-421917.3, Jan. 29, 2024, 2024 CPD ¶ 40.

Government Must Have a Rational Basis for its Evaluation of Proposals

The bar for the government to win at GAO is very low. The agency need only have a rational basis for how its evaluation of proposals is directly related to the evaluation scheme announced in the solicitation. However, the government repeatedly has difficulty meeting this low bar at GAO. Protestors need to understand that in addressing a protest of unreasonable evaluation of proposals, GAO does not substitute its judgement for the agency’s and determine what evaluations the offerors should have received. Rather, GAO simply examines the record to determine whether the evaluation was reasonable and consistent with the announced terms of the solicitation.

Kauffman and Assocs., Inc.

For instance, in Kauffman, GAO sustained several of the protestor’s grounds concerning allegations of unreasonable evaluation of proposals. GAO issued the Department of Health and Human Services, Centers for Medicare and Medicaid Services (“CMS” or the “agency”) a resounding rebuke of its evaluation and resulting award decision.

Kauffman and Associates, Inc., a women-owned small business of Spokane, Washington, protested the issuance of an order to another vendor by CMS for training, planning, and meetings support services. The solicitation was issued to five vendors. The solicitation called for the agency to accept the best-value quote, defined as the highest technically rated quote with reasonable pricing. Quotes were evaluated on the basis of five equally weighted factors: (1) technical approach; (2) personnel; (3) management plan; (4) past performance; and (5) cost/price. Two or more significant weaknesses under a single factor excluded a vendor from the competition.

(1) Improper Evaluation of All Five Factors in the Solicitation Beginning with Technical Approach

GAO found the agency erred in its evaluation of each of the five factors. As to the first factor, the technical approach, GAO found that language in the solicitation was unclear as to whether the vendors needed to demonstrate relevant prior experience. GAO deemed this to be a latent ambiguity in the solicitation and because this ambiguity led to the protestor being excluded from the competition, GAO sustained the protest on this ground alone.

(2) Personnel Factor of Awardee Misevaluated

GAO sustained the protest under the personnel factor as well because the agency provided no response to the protestor’s arguments that the awardee failed to satisfy this factor as required by the terms of the solicitation.

(3) Management Plan Omission Not a Clerical Error and (4) Past Performance in Wrong Proposal Volume

As to the third technical factor, the management plan, the protestor pointed out that the awardee failed to explain how it would protect proprietary and confidential data as required by the solicitation. GAO rejected the agency’s argument that this omission was a clerical error of no consequence and held that if the agency had reasonably evaluated the awardee’s management plan as required by the solicitation, it would have assigned a weakness and lower rating to the awardee.

Additionally, GAO sustained the protest that the agency failed to properly evaluate the awardee’s past performance in accordance with solicitation requirements. The solicitation required vendors to disclose past performance in a separate proposal volume, but the agency relied upon information contained in the technical volume to assign the awardee a strength on this factor.

(5) Price Evaluation Also Unreasonable

As to the fifth technical factor, cost/price, the protestor successfully argued that the agency unreasonably found the awardee’s price to be “fair, reasonable, and realistic,” when in fact the quoted prices impermissibly exceeded the awardee’s Federal Supply Schedule (“FSS”) pricing. GAO agreed, noting that while vendors may discount prices below their FSS rates, vendors may not propose higher rates.

This protest is a textbook example of misevaluation of not just the technical factor, but also of past performance and price. Ultimately, GAO recommended the agency revise the solicitation, allow vendors to submit revised quotes, and pay the protestor its protest costs and attorneys’ fees. Thus, as with almost all successful protests, the protestor got another bite at the apple, but did not directly receive award. GAO simply recommended that the agency go back and reevaluate the quotes under a similar or changed solicitation evaluation scheme.

Key Takeaway on Protesting Ambiguities in a Solicitation

A key takeaway from the Kauffman decision is the difference between a patent ambiguity and a latent ambiguity and when concerns regarding an ambiguity must be raised in the procurement process. A patent ambiguity is an ambiguity that is an obvious, gross, or glaring error in the solicitation. A patent ambiguity must be raised before bid opening or the closing date for receipt of proposals. A latent ambiguity, like the ambiguity at issue in Kauffman, is a more subtle ambiguity where both parties’ interpretations of the provision may be reasonable. A latent ambiguity may be a ground for protest after proposals are submitted.

Conclusion: Misevaluation is a Strong Protest Ground

The bottom line is that the surest and easiest way to win a GAO bid protest is to show that the agency simply did not follow the evaluation criteria stated in the solicitation, applying the definitions and standards of the solicitation.

Howard W. Roth is a Partner with Smith Currie Oles. He is a key member of the Firm’s Government Contracts Practice and is a knowledgeable advisor on terminations, procurement disputes, Requests for Equitable Adjustment (REAs), claims, protests, Buy America/Buy American, rights in technical data and computer software, and International Traffic in Arms Regulations (ITARS), and export controls. He can be reached at hwroth@smithcurrie.com or 206.467.7461.

Sarah K. Carpenter is a Partner with Smith Currie Oles and a member of the Firm’s Federal Government Contracting Team. Her experience includes representing contractors and subcontractors performing projects for the United States government both domestically and abroad. She provides her clients with legal advice throughout all stages of construction projects, including contract review and negotiation, bid protests, risk management, project counsel, performance reviews (CPARs), claims preparation, and complex litigation. She can be reached at skcarpenter@smithcurrie.com or 704.334.3459.