It is a fundamental tenet of government contracts that procuring agencies treat all offerors equally. In this regard, adjudicative forums have long held that procuring agencies must provide all offerors with a common basis for preparing and submitting proposals. Such equal treatment necessarily requires the government to evaluate proposals of all offerors impartially and evenhandedly against the solicitation requirements and the evaluation criteria. Furthermore, once the evaluation is complete, agencies must adequately document their award decision, which should reflect the equal application of the stated criteria to all proposals. If an agency disparately evaluates offerors with respect to the same solicitation requirements, it may be subject to a post-award protest. The Government Accountability Office (GAO) reviews protests alleging disparate treatment by examining the record to determine whether the agency’s evaluation decision was reasonable and in accordance with the evaluation factors provided in the request for proposals (RFP). The GAO will sustain the protest and typically recommend a reevaluation if it determines that the agency treated the offerors’ proposals disparately or unequally, such as by evaluating the protester’s proposal using a stricter standard than the awardee’s proposal.
In B-402602, a bid protest decision issued on June 17, 2010, the GAO sustained a protest alleging disparate treatment of offerors during the evaluation. The Department of Veterans Affairs (VA) had issued the underlying RFP for the construction of a radiology imaging center, including a room for Magnetic Resonance Imaging (MRI), at the VA Medical Center in White River Junction, Vermont. The RFP contemplated a best value award on a tradeoff basis under the past performance, management approach, and price factors. The RFP advised offerors that both experience and past performance would be evaluated under the past performance factor. Additionally, the offerors were informed that the agency would consider the experience and past performance of major subcontractors. In evaluating the past performance factor, the VA noted that while the protester’s proposal had identified a project of similar size, that project did not demonstrate the protester’s experience with respect to the construction of an MRI room. The agency also noted that the protester’s proposal included copies of proposals of its subcontractors to demonstrate the MRI room construction experience. In part due to these reasons, the VA assigned the protester’s proposal an unacceptable rating for the past performance factor.
Meanwhile, in evaluating the past performance factor of the awardee’s proposal, the agency noted that the awardee had demonstrated specialized experience involving the construction of MRI rooms. The source selection authority determined that the awardee did not provide proposals from any subcontractors. The source selection decision document also specifically noted that the awardee’s proposal was the only one with specific experience in MRI construction. With respect to the past performance factor, the awardee’s proposal was rated as acceptable with moderate risk. As a result, the awardee’s proposal was determined to provide the best value to the government even though the protester had submitted a lower-priced proposal.
During the post-award protest, the protester pointed to the fact that the main difference between general clinic construction and an imaging center construction contemplated by the RFP was that the latter required the shielding of radiology rooms. The protester asserted that the shielding involved specialized construction work that a general contractor, including the awardee, did not perform itself. In other words, the protester alleged that although the awardee’s proposal did not include a quotation from the subcontractor, the awardee would still require a subcontractor to perform the shielding work. Therefore, the protester claimed that the agency treated it disparately when it failed to consider the experience of its subcontractor that would perform the specialized shielding work.
The GAO agreed with the protester, noting that the VA treated the protester’s proposal disparately and did not reasonably conduct the evaluation in accordance with RFP requirements and stated factors. Specifically, the GAO found that it was unreasonable for the VA to note in the source selection decision document that the awardee was the only offeror with specialized MRI rooms construction experience. The protester had proposed an experienced subcontractor to perform the shielding work, and the RFP specifically advised the offerors that the agency would consider the experience and past performance of subcontractors. Furthermore, the record reflected that the protester had identified the same subcontractor in its proposal as the specialty subcontractor used by the awardee in two of its construction projects for the VA. Significantly, the awardee had received credit for these projects, whereas the protester was denied similar credit for the past performance and experience of the same shielding subcontractor. Under these circumstances, the GAO concluded that the VA did not reasonably evaluate the two proposals and, in effect, treated the two offerors disparately. Consequently, the protest was sustained, and the GAO recommended that the VA reevaluate the proposals and, if necessary, make a new source selection decision.
It is a basic principle of federal procurement law that agencies treat offerors equally when conducting evaluations. Offerors that suspect disparate treatment in the evaluation of their proposals should request a debriefing and file their post-award protests in a timely manner. It is often the case that once an offeror files their protest at the GAO, the agency submits documents that contain information concerning disparate treatment either with the agency report or before the report is filed. In such cases, the protester should carefully review the new information and file any supplemental protests within the 10-day window after the receipt of the new information. If the agency provides the new information regarding disparate treatment in the agency report, protesters may file their supplemental protests together with their comments on the agency report. However, protesters should be mindful that when the information about disparate treatment is received before the agency report is filed, they have 10 days from the receipt of new information in which to file any supplemental protests. By understanding the rules concerning disparate treatment of offerors and timely filing their protests upon receiving information that indicates their proposals were treated disparately, protesters can be better positioned to challenge the disparate treatment of their proposals during evaluations.
This Bid Protest Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portalor Contact Us to determine how the law would apply in a specific situation.