In order to prevail on a bid protest, the protester must prove not only that the procuring agency erred but also that the protester was competitively prejudiced by that error. Sometimes that can be difficult for the protester to do. For example, in Alexandra Construction, Inc., B-417212 (Apr. 2, 2019), GAO held that, while the procuring agency failed to equally evaluate proposals, the protester was not competitively prejudiced by this error and denied the protest.
In that case, the protester protested the General Services Administration’s (“GSA”), award of a fixed-price contract for masonry repair and repointing services on the grounds that GSA unreasonably evaluated the proposals. For this best value procurement, GSA was to evaluate, among other factors, the offerors’ experience on similar projects and their past performance. To evaluate experience on similar projects, GSA required the offerors to submit four to six reference projects. As part of the past performance evaluation, GSA required the offerors to submit past performance questionnaires and provide points of contact as references for each listed project.
GSA ultimately awarded the contract to a higher priced, higher evaluated offeror and the protester challenged the award at GAO. With regard to the past performance evaluation of its proposal, the protester argued that GSA acted unreasonably because, rather than calling the listed reference, GSA contacted a non-listed third-party architectural firm. GAO held that GSA’s decision to contact the third-party architectural firm was reasonable because the listed point of contact did not respond to GSA’s emails and phone calls and the solicitation did not require GSA to contact all of the provided points of contact. GAO noted that the architectural firm had stated that the protester was reasonable to work with and had conducted productive subcontractor coordination meetings, and that the architectural firm would have no problem working with the protester again.
With regard to the experience evaluation, the protester argued that GSA performed an unequal evaluation when evaluating the relevancy of the protester’s and the awardee’s reference projects. Specifically, the protester argued that it was unreasonable for GSA to award it weaknesses for not serving as the prime contractor on some of the reference projects while not assigning a similar weakness to the awardee.
GAO, citing to the long standing rule that an agency may not generally engage in conduct that amounts to unfair or disparate treatment of competing offerors, found that GSA acted unfairly when it assigned weaknesses to the protester but not the awardee. However, GAO concluded that this unequal treatment did not amount to competitive prejudice because the protestor could not prove that, but for the agency’s actions, it would have received the award. GSA evaluated the protester’s proposal as having a number of other weaknesses. Thus, removing the weakness for prime contractor status would not have resulted in a different best value tradeoff decision given the awardee’s higher evaluation scores.
This decision illustrates that, even where the protester can demonstrate that the agency made mistakes in its evaluation of the proposals, the protestor still has yet another hurdle to sustain a protest – it must demonstrate that it was harmed by the mistakes. GAO generally will not find the protestor has been competitively prejudiced when, despite the agency’s alleged errors, the protestor’s competitive position would remain the same or no new best value tradeoff would need to be performed. Proving competitive prejudice – or at least the reasonably possibility of prejudice – is easier when the evaluation scores of the protester and the awardee are not significantly different and/or the protester’s price is significantly lower than the awardee’s price.
*The author would like to acknowledge the contribution of Sabah Petrov, a law clerk in our Washington, D.C. office, to this blog.