Government Contracts Monitor

GAO Reaffirms: There’s No Prevailing without Prejudice

September 17, 2013

In the final round of a protest that took three separate cycles to complete, GAO recently made clear that even where the record establishes the agency was irrational in how it scored proposals, unless the error was prejudicial to the protester, the protest will be denied. edCount, LLC, B-407556.3; B-407556.4; B-407556.5; B-407556.6 (Comp. Gen. Aug. 15, 2013).

In edCount, the Department of Education (DOE) issued an RFP that contemplated award of a fixed-price contract on a “best value” basis. Technical merit was significantly more important than price and was to be scored using the detailed point value system set forth in the RFP. The first two times the agency evaluated proposals, in response to edCount’s protests alleging that evaluations were not performed in accordance with the RFP, DOE took corrective action and reevaluated proposals. After the third evaluation of proposals, DOE determined to eliminate edCount from the competitive range, triggering the final protest – again based upon the agency’s alleged failure to follow its evaluation scoring system.

GAO found that edCount was correct with respect to its contention that the agency failed “to adhere to the evaluation scoring scheme outlined in the RFP.” Indeed, GAO agreed with the protester that “there is no way to determine the basis for, or underlying reasonableness of, the point score assigned to [edCount’s] proposal” and that “these defects permeate both the individual evaluators’ scoring, as well as the consensus scoring.” In addition, GAO found that in arriving at the consensus scores, “the individual evaluators simply averaged their total point scores, even though there were wide variations in those scores.” According to GAO “agencies may not properly announce one basis for evaluating proposals and making a source selection decision and then evaluate proposals and make award on a different basis.” In a word, GAO found the agency’s point scores to be “meaningless.”

Despite these dramatic findings, however, GAO denied the protest because the agency’s scoring was not prejudicial to edCount, reminding us that “prejudice is an essential element of every viable protest.” How did GAO reach this conclusion in this instance? By looking at the contracting officer’s (CO’s) detailed analysis of edCount’s proposal, including the CO’s description of the numerous weaknesses in such proposal. These weaknesses, which the CO concluded made edCount’s proposal “significantly weaker” than other proposals, provided a “reasonable basis for its elimination from the competitive range” and, therefore, meant that edCount was not prejudiced by the agency’s irrational scoring.

The lesson: If you’re thinking about protesting, make certain the missteps you want to challenge actually prejudiced the outcome with respect to your bid or proposal.

Lindsay Simmons is the attorney responsible for the content of this article.

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Lindsay Simmons