The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series. In this series, Crowell’s Government Contracts Practice keeps 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 GAO’s decision in Veterans Management Services, Inc., which provides an important reminder that once an agency sets the rules for the procurement, it must play by them.

The solicitation, issued by the Department of Veteran Affairs (VA) for acquisition support services, stated that “recent experience within the past three (3) years may be viewed more favorably than performance older than three (3) years.”  Yet, in performing the evaluation, the agency treated that preference as an absolute bar: past performance more than three years old was not considered at all.  VMSI protested, arguing that the VA’s evaluation diverged from the solicitation’s terms.  GAO agreed.

In analyzing the statement that performance within the last three years “may be viewed more favorably” GAO concluded that the solicitation established a preference, not a hard cutoff.   By categorically refusing to consider any experience that was more than three years old, the agency effectively rewrote the solicitation and held vendors to a standard they were never told would apply. As GAO put it, “If the agency wanted to limit recency to three years it could have said so, but the solicitation, as written, did not.”  

Moreover, GAO found a reasonable possibility that VMSI was prejudiced by the VA’s improper evaluation. Past performance was approximately equal to price in importance under the best-value tradeoff, and the error was not insignificant: the references the agency excluded without review carried performance ratings of “Exceptional” or “Very Good,” with more than 70 percent rated “Exceptional.” There was, GAO concluded, a reasonable possibility that properly accounting for those references could have changed the best-value determination in the protester’s favor.

The Veterans Management Services decision reaffirms a foundational principle of procurement law: once the solicitation sets the rules, the agency must follow them. For contractors, the decision is a reminder to scrutinize not just whether an agency claimed to apply its evaluation criteria, but how — because even a facially reasonable evaluation approach can be a protestable error when its implementation goes against what the solicitation actually said.