Tuesday, September 27, 2016

Protester Must Establish that a Flawed Government Evaluation was Prejudicial

Competitive solicitations are evaluated based on stated criteria and each criteria is ranked in order of importance. Each of those criteria may contain sub-factors which themselves are ranked in order of importance. Besides rankings in importance, the criteria are also ranked in significance to other evaluation criteria. Thus a solicitation might provide something along the lines of the technical evaluation criteria are to be considered significantly more important than cost.

For contractors filing bid protests, they must not only show the Government somehow erred in its evaluation, but that the error prejudiced their ability to win the award.It is well established that a protester must show not simply a significant error in the procurement process, but also that the error was prejudicial, if it is to prevail in a bid protest. In that regard, a party has been prejudiced  when it can show that but for the error, it would have had a substantial chance of securing the contract.

If a bidder is ranked lower than other bidders in a "significantly more important" evaluation factor, it would have a difficult time proving that a Government flaw in the evaluation of a relatively insignificant evaluation factor prejudiced its ability to win the contract. If a protestor cannot demonstrate that it was prejudiced, the Courts or the Comptroller General will not even consider whether the Government's evaluation was flawed. That determination becomes moot.

If there is a tie among bidders on all evaluation criteria except the most insignificant, that is, bidders received identical adjectival ratings within each evaluation criteria, a protestor can then assert that it has been prejudiced by a flawed evaluation of the most insignificant criteria.

No comments:

Post a Comment