Lack of Even-Handedness In Evaluation Leads GAO to Sustain Protest

The GAO found that a number of agency evaluation assessments were not supported by the record and indicated unequal treatment of offerors.

In this procurement, the agency conducted a competition among Federal Supply Schedule (FSS) contractors to establish a single blanket purchase agreement (BPA) for an automated Freedom of Information Act system.  Following an award to another competitor, the protester alleged unequal treatment in a number of evaluation conclusions.

For example, the protester argued that the evaluators engaged in unequal treatment by downgrading its software for failing to automatically insert a correct disposition code, when, by comparison, the evaluators failed to downgrade the awardee’s software which did not even automatically insert any final disposition codes.  While the protester admitted  that its software might occasionally default to an incorrect disposition code, this was not a significant problem because the user could override the default selection.  The agency maintained that requiring the user to override the default selection was inconsistent with its purpose of procuring an automated system.  But as the protester pointed out, the awardee’s software did not automatically insert any codes, and instead required the user to select a disposition code from a drop down menu.  Thus, the awardee’s software had the same lack of automation as the protester’s, yet, the awardee received no negative evaluation for this.  The GAO found the evaluators’ treatment of the two quotations to be disparate.

Also, the protester challenged the agency’s conclusion that the protester did not adequately understand a recent statutory amendment to the Freedom of Information Act.  Although the protester used a term “logged in” which was imprecise, and although the protester used the phrase “10 day transfer period” which could create an inaccurate assumption for the user, the awardee’s use of the term “perfected” and its reference to a “10 day routing period” were equally imprecise and could be construed as reflecting a misunderstanding of the new requirement.

When an agency conducts a formal competition for the establishment of a BPA, the GAO will review the agency’s actions to ensure that the evaluation was reasonable and consistent with the solicitation and applicable procurement statutes and regulations.  In conducting this review for “reasonableness”, the GAO will check to make sure the agency was “even-handed” in its assessments — that is, whether the agency gave offerors similar credit for similar strengths and, similarly, whether the agency was consistent in its attribution of weaknesses in the proposals.  Based on its review of the record, the GAO found several aspects of the agency’s evaluation to be unreasonable and lacking in even-handedness.

The GAO sustained the protest and recommended that the agency reopen discussions, reevaluate quotations, and make a new source selection decision.  The GAO also recommended that the protester be reimbursed for the reasonable costs of filing and pursuing the protest.

AINS, Inc., B-400760.4, B-400760.5, January 19, 2010