The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series.  In this series, Crowell’s Government Contracts Group will keep you up to date with a summary of one of the most notable bid protest sustain decisions each month.  Below, Crowell Consultant (and former GAO Bid Protest Hearing Officer) Cherie Owen discusses the protester’s decisive victory in Enviremedial Services, Inc., a case in which Crowell successfully represented the protester in challenging both the past performance evaluation and the best value determination.

In Enviremedial Services, the Army Corps of Engineers sought to procure preventative maintenance, repair work, and other facilities services at locations across Georgia, North Carolina, and South Carolina.  The procurement, conducted as a small business set-aside, was to be awarded to the proposal that represented the best value, considering three factors: understanding of the work, past performance, and price.  In evaluating past performance, however, GAO found the Corps committed several errors: it credited the awardee, BryMak, with the past performance of an affiliate, even though the proposal included no explanation of the relationship between BryMak and the affiliate; it improperly attributed performance on two contracts executed by BryMak’s subcontractors to BryMak itself; and it credited BryMak’s subcontractor for past performance performed by a joint venture, despite the record containing no analysis of the subcontractor’s specific role within that joint venture. 

GAO found these errors to be prejudicial.  Although the agency argued that BryMak’s overall past performance rating would have remained unchanged notwithstanding these errors, GAO explained that post hoc arguments or analyses generated during the course of litigation are afforded little weight.  Further, GAO emphasized that the agency’s focus on whether BryMak’s adjectival past performance rating would change was misplaced.  Adjectival ratings are not intended to be the centerpiece of a best-value determination.  Rather, agencies are required to consider the “relative merits of the two offerors’ past performance” in making their tradeoff decision.  Here, the agency’s qualitative evaluation of BryMak’s past performance contained numerous substantive flaws, undermining the integrity of the award decision. 

In addition to deficiencies in the Corps’ past performance evaluation, GAO also concluded that the best-value tradeoff itself was independently flawed.  Specifically, the agency’s tradeoff analysis failed to consider substantive discriminators between the two proposals regarding past performance. Instead, the agency noted that both companies received the same adjectival rating and, as a result, treated the two as essentially equal under the past performance factor.  As GAO has long stressed, this approach is improper; adjectival ratings serve only as “guides to intelligent decision-making” and should not be relied upon exclusively.  Even if both companies’ adjectival ratings were unobjectionable, the two proposals exhibited significant substantive differences that the agency failed to consider in its tradeoff analysis.  Enviremedial demonstrated significantly more relevant past performance—and received highly positive ratings—compared to BryMak.  The Corps disregarded these qualitative distinctions by relying solely on the offerors’ adjectival ratings.  As a result, the best value tradeoff was also prejudicially flawed.  Ultimately, GAO directed the agency to re-evaluate proposals and make a new award decision.

            The Enviremedial Services decision underscores the importance of GAO’s protective order, which enables outside counsel representing the protester (and intervenor) to access the evaluation record and other key documents—materials that would otherwise remain inaccessible because they contain proprietary or source selection sensitive information (such as documents about the awardee’s past performance references).  The decision also serves as a reminder that agencies must provide meaningful, well-documented qualitative analyses—beyond reliance on adjectival ratings—when comparing proposals.  These analyses must be reasonable and consistent with the actual contents of the offerors’ submissions.  For contractors, Enviremedial Services illustrates the critical value of thoroughly understanding—and, when appropriate, challenging—the government’s evaluation process to ensure a fair procurement outcome.  Because bid protests often hinge on subtle errors in evaluation or tradeoff documentation, working with counsel who are adept at navigating the complexities of the GAO process—accessing protected material, reviewing evaluation records, and identifying key issues—can be vital in protecting a company’s competitive interests and securing just outcomes under the law.