The Government Accountability Office (“GAO”) releases an annual report to Congress. In the report, the GAO lists the most common reasons for sustaining bid protests, which vary from year to year. There are usually about five reasons bid protests are successful.

The typical top five reasons for a successful bid protest are as follows:

  1. unreasonable cost or price evaluation;
  2. unreasonable past performance evaluation;
  3. failure to follow evaluation criteria;
  4. inadequate documentation of the record; and
  5. unreasonable technical evaluation.

This is the second post of a five-post series where I will give examples of each of the above in the context of federal government construction contracts.

There have been many construction-related bid protests regarding the second most common reason the GAO will sustain a bid protest—the agency engaged in an unreasonable past performance evaluation. In Brican Inc., B-402602 (Comp. Gen. June 17, 2010), the Department of Veterans Affairs (“VA”) awarded a contract to Legion Construction, Inc. (“Legion”) for construction services to expand and replace a radiology imaging center at a VA medical building. Despite not being the lowest-priced bidder, the VA determined that Legion should be awarded the contract because Legion’s proposal was the only one with specific radiology construction experience.

One of the other bidders, Brican, Inc. (“Brican”), filed a bid protest and argued that contrary to the solicitation, the VA did not consider the experience of its subcontractor that would perform the specialized shielding for the radiology rooms. The GAO agreed, sustained Brican’s bid protest, and concluded there was no evidence that the VA considered the past performance/experience of Brican’s shielding contractor.

The GAO also found that the VA did not treat Brian and Legion equally. In particular, the GAO noted that the VA did not reasonably evaluate Legion’s proposal under the past performance factor. Although the VA concluded Legion had completed five similar projects, Legion’s proposal indicated that it had only identified two specific similar projects. As a result, Legion did not satisfy the required experience requirement, and the contract should not have been awarded to Legion.

The GAO recommended, among other things, that the VA should reevaluate the proposals, make a new selection decision, and if a contractor other than Legion was selected, terminate Legion’s contract and award the contract to the new contractor. The GAO also recommended that Brican be awarded the costs of filing and pursuing the bid protest, including any fees paid to its attorney.

Bottom Line: You should make sure that the record supports the agency’s conclusions regarding a contractor’s experience. Frequently, the only way to ensure the agency acted properly is to file a bid protest and obtain agency’s evaluation documents.