GAO Annual Report Reveals Most Commonly Successful Arguments in Bid Protests

By Brett W. Johnson, Vanessa M. Pomeroy, and Lilly M. Harris

In its “GAO Bid Protest Annual Report to Congress for Fiscal Year 2024,” the Government Accountability Office (GAO) revealed the most common reasons bid protests were sustained this past year, including: (1) unreasonable technical evaluations; (2) flawed selection decisions; and (3) unreasonable cost or price evaluations.¹ An examination of the representative cases cited by the GAO offers helpful insights for contractors seeking to succeed in bid protests, or government agencies seeking to mitigate protest risk.²

1. Unreasonable Technical Evaluation

In re Kauffman and Associates, Inc. highlights the GAO sustaining a protest based on an agency’s flawed technical evaluation — the leading cause of bid protests being sustained over the last year. Here, the GAO found (1) the solicitation was ambiguous regarding the evaluation requirements for a technical approach factor, so one of the agency’s assigned “weaknesses” to the protester’s quotation was unjustified; (2) there was unequal treatment in the agency’s evaluation because the agency assigned weaknesses to the protester, but not to the awardee for similar omissions; (3) the agency unreasonably evaluated offerors’ quotations under the solicitation’s non-price factors; and (4) the agency unreasonably evaluated the awardee’s quotation under the price factor. For these reasons, the GAO recommended that the agency revise the solicitation to clarify its technical evaluation factors, allow offerors to resubmit revised quotations, reevaluate quotations, and reissue an award decision accordingly. Government agencies should be mindful of these pitfalls when creating solicitations and training evaluators, and contractors should turn a sharp eye to technical evaluations when protesting.

2. Flawed Selection Decision

Next, In re Washington Business Dynamics, LLC demonstrates the GAO sustaining a protest that challenged an award decision premised on fundamentally flawed reasoning. The GAO found (1) the agency’s evaluation of the awardee’s quotation was flawed and insufficiently documented by the agency under multiple factors; (2) the agency’s evaluation arbitrarily compared offerors’ adjectival ratings as opposed to the merits of each offerors’ proposal; and (3) there was no documentation or analysis in the record to support the agency’s conclusory finding that both offerors’ technical solutions were equal on the merit. As a result, the GAO recommended the agency amend the solicitation, conduct a new evaluation where its decisions and findings are adequately documented, and reissue an award decision. Government agencies and contractors should be mindful to ensure an award decision is sufficiently justified by the record.

3. Unreasonable Cost or Price Evaluation

Lastly, In re Criterion Corporation exhibits the GAO sustaining a protest that challenged a protester’s disqualification based on the unreasonableness of the agency’s price realism evaluation. Notwithstanding the vast discretion afforded to government agencies in the procurement context, the GAO found an agency’s determination that the protester’s proposed price was unrealistically low was unreasonable considering the agency failed to supplement the record with considerations as to whether the protester could reasonably perform its proposed technical approach at the proposed price. Ultimately, the GAO recommended the agency conduct a new price realism evaluation for the protester. This again demonstrates the need for agencies to sufficiently justify their analysis and evaluation records, or risk successful protests by contractors.  

4. Other Factors

Although not highlighted specifically, it is unclear the impact the Supreme Court’s overruling of the Chevron doctrine will have on GAO protests going forward. Specifically, the GAO (and the Court of Federal Claims) have regularly given deference to agency decisions related to implementing solicitation evaluation criteria. In some cases, the rational basis was potentially ex post facto or developed in response to a protest. Furthermore, the GAO report does not capture corrective action taken by agencies to avoid a GAO decision – or the significant length of time that agencies undertake for such corrective action, which is unregulated. Finally, it is unclear the impact the new Trump administration will have in regard to bid protests going forward, especially those related to solicitation criteria that is now barred by certain presidential executive orders, but for which offerors stated compliance and expected scoring accordingly.

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Government agencies and contractors should keep these common pitfalls at front of mind when conducting a procurement or evaluating an award decision for protest grounds. This holds true for state procurements as well, considering many states turn to federal law for guidance or persuasive authority in procurement law.