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SBA Bid Protests

TekSynap’s Government Accountability Office Bid Protest

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In this bid protest, the protester TekSynap alleged 3 issues: 1) the agency’s evaluation of its price was unreasonable, 2) the agency’s technical evaluation was erroneous, and 3) disparate evaluation between the awardee and TekSynap’s proposal. The Government Accountability Office (GAO) pointed out it was of particular significance that TekSynap argued the agency should have reopened discussions after finding the awardee’s proposal was technically superior because that rating was unreasonable.

The GAO agreed with TekSynap and found the agency’s evaluation of the awardee’s proposal as outstanding and technically superior to the protester was unreasonable, and by extension, the agency’s decision to not reopen discussions based on that evaluation was also unreasonable.

In support of its arguments, TekSynap complained that the agency unreasonably rated the awardee’s proposal as “outstanding” despite one of its personnel failing to meet a mandatory qualification. In its decision, the GAO repeatedly asserted it would not reevaluate proposals or substitute its judgment for the judgment of the agency.

The GAO’s Analysis of the Agency’s Evaluation of the Awardee’s Proposal

In agreeing with TekSynap, the GAO found the record did not support the reasonableness of the agency’s decision to determine the awardee’s proposal only a slight weakness for failing to meet a mandatory key personnel qualification. Further, the GAO pointed to a post-protest declaration from the technical/management evaluation team (TMET) did not consider failure to meet one mandatory qualification and material failure.

The GAO further found it was not apparent from the record and supplemental declarations how a candidate who could not demonstrate experience in enterprise operations management and who could not meet a mandatory qualification could pose only a slight risk of unsuccessful performance. As a result, the GAO found that the agency’s determination that the awardees management plan subfactor as “outstanding” was “unreasonable.”

The GAO determined that the Request for Proposals (RFPs) definition of “outstanding” did not preclude an award to a proposal with a weakness, but that an offer of that proposed to the candidate that did not meet mandatory qualifications could not demonstrate “an exceptional approach” or an “understanding of the requirements” warranting the “outstanding” rating.

The GAO’s Analysis of the Protester’s Proposal

Beyond protesting the GAO’s evaluation of the awardee’s proposal, TekSynap also protested the agency’s evaluation of its own proposal. It argued that the agency should have evaluated its proposal as a “significant strength” rather than a “moderate strength” under the management approach subfactor. The agency had evaluated its proposal as having “merit or exceeds specified performance or capability requirements” and “significantly reduces the risk of unsuccessful performance.” The Government argued its evaluation was based not only on the merit of the proposal but also on the advantage that proposal gave the Government.

In disagreeing with the Government and consistent with TekSynap’s allegations in its protest, the GAO stated that it afforded much greater weight to the contemporaneous source selection materials than representations made in response to protest allegations. Additionally, it stated that it gave little weight to post-protest statements that were inconsistent with the contemporaneous record. In its supplemental declaration from the TMET, the agency asserted it erroneously used the adverb “significantly” was in error despite stating during the evaluation process that TekSynap’s proposal “significantly reduced” the risk of unsuccessful performance.

The GAO stated it did not find anything in the contemporaneous evaluation documents explaining the agency viewed TekSynap’s proposal as being moderately advantageous despite significantly decreasing the risk of unsuccessful performance, “Because the agency’s post-protest defense is not supported by the contemporaneous record, we find the exclamation to be unpersuasive and afforded little weight.” The GAO concluded by extension that the agency’s assignment of “moderate strength” to TekSynap’s management approach instead of “significant strength” was unreasonable.

GAO’s Decision on the Reopening of Discussions

The agency’s decision not to reopen discussions with TekSynap was in part based on its assertion that the awardees proposal was superior to TekSynap’s and therefore it was not necessary to reopen discussions. In disagreeing with the agency, the GAO found that because the agency’s technical evaluations were unreasonable, the decision not to reopen discussions based on those technical evaluations was also unreasonable, “While the agency has no obligation to reopen discussions, its consideration of whether to reopen discussions must be reasonable and cannot be predicated on an unreasonable evaluation.”

Prejudice

“Nonetheless, our office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was competitively prejudiced by the agency’s actions; that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award.” Here, the GAO found that, but for the agency’s errors, the agency might have (1) rated the awardee’s management plan lower, and (2) rated TekSynap’s management plan higher. By extension, the GAO determined it was possible these changes might have made TekSynap’s technical/management equal to or better than the awardee’s. It also found the agency may have opted to reopen discussions if it found TekSynap’s proposal was superior to the awardee’s.

Conclusion

On March 19, 2021, the GAO recommended the agency reevaluate proposals in a manner that was consistent with the terms of the solicitation and its decision, or, in the alternative, reopen discussions and request revised proposals before reevaluating and make a new source selection decision based upon that reevaluation. It further recommended the agency reimburse TekSynap its reasonable cost of filing and pursuing its protest, including reasonable attorney’s fees.

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About the AuthorJoe Whitcomb

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