United States: Unstated Evaluation Criteria And Waived Solicitation Requirements (Bid Protest Primer #10)

Last Updated: November 1 2017
Article by Daniel E. Chudd and James A. Tucker

This week we'll discuss two protest arguments that are, in some ways, two sides of the same coin: unstated evaluation criteria and waived or relaxed solicitation requirements. In each, the focus of the protest is on what was required (or not required) by the solicitation and whether the agency's evaluation was consistent with the information provided to offerors in the solicitation. In this way, it is also related to the latent ambiguity arguments we discussed in Part 9 and may serve as an argument in the alternative when making a latent ambiguity argument.

Unstated Evaluation Criteria

Under an unstated evaluation criteria theory, the protester must show that it was faulted for a weakness, or the awardee was credited with a strength, that has no logical relation to the stated evaluation criteria. The GAO has long stated that agencies are "required to evaluate proposals based solely on the factors identified in the solicitation." See Intercon Assocs. Inc., B-298282, B-298282.2, Aug. 10, 2016, 2006 CPD ¶ 121 at 5. The agency, however, is not limited to a strict interpretation of the factors identified in the solicitation; rather, the agency "may properly apply evaluation considerations that are not expressly identified in the RFP if those considerations are reasonably and logically encompassed within the stated evaluation criteria, so long as there is a clear nexus linking them." Phoenix Air Grp., B-412796.2, B-412796.3, Sept. 26, 2016, 2016 CPD ¶ 308. However, an agency may not "give importance to specific factors, subfactors, or criteria beyond that which would reasonably be expected by offerors." Lloyd H. Kessler, Inc., B-284693, May 24, 2000, 2000 CPD ¶ 96 at 3. Thus, the GAO's (and Court of Federal Claims') analysis in these protests often focuses on the "nexus" between the express solicitation language and the way in which the agency evaluated proposals and whether offerors could have reasonably recognized that nexus.

For example, in Risk Analysis and Mitigation Partners, B-409687, B-409687.2, July 15, 2014, 2014 CPD ¶ 214, the GAO sustained a protest in which the protester was assessed a weakness for, among other things, a failure to address certain standards that were not specifically referenced in the solicitation (but were listed in a document on the agency's website containing approximately 400 standards). In response, the Agency pointed out (and the GAO acknowledged) that the solicitation required offerors to "ensure compliance with FEMA standards" in responding to a performance objective. The GAO concluded, however, that the mere reference to the standards did not "reasonably advise[ ] offerors of the agency's view that the offerors were required to specifically address their experience" with the specific standards for which the protester was given a weakness. Moreover, the GAO noted that the agency did not assess weaknesses for the protester's failure to address every standard listed on the website, but only for specific standards that were not specifically called out in the solicitation, thus offerors "could not have known that the agency expected offerors to focus their proposals on a particular number of numerous standards listed" on the website. Similarly, in Apex-MBM, JV, B-405107.3, Oct. 3, 2011, 2011 CPD ¶ 263, the GAO concluded that the agency had used unstated evaluation criteria in rejecting an offeror's proposal because it failed to propose site-specific staff deployments and supplies. In reaching this conclusion, the GAO noted that the solicitation required only that offeror's describe their "proposed plans, processes, procedures, and systems, and provide all supporting data and documentation," and did not specifically require site-specific staff deployments. Moreover, the solicitation provided offerors only 15 pages in which to describe their technical solutions and included a performance work statement stating that after award offerors would submit schedules and a list of supplies and equipment needed. Thus, the GAO concluded that an offeror "could not reasonably understand that it was required to proposed staff deployments ... as well as tools, supplies, and equipment" for each of the sites.

In contrast, in MicroTechnologies, LLC, B-403713.6, June 9, 2012, 2012 CPD ¶ 131, the GAO concluded that an agency's evaluation of the specific tasks necessary for performance of overall sample tasks was reasonably related to the stated evaluation criteria, thus an unstated evaluation criteria protest was denied. In that case, the solicitation required offerors to respond to three sample task orders that would be evaluated to determine "whether the offeror understood the problem and had a feasible approach to solving it." In evaluating the responses, the agency "prepared a list of key focus and lower level focus areas that it believed an offeror would have to address to demonstrate that it understood the task." The GAO concluded that this evaluation was reasonably related to the Solicitation requirements, noting that "understanding and feasibility ... are not factors that can be evaluated on their own, without reference to the work to be accomplished" and that the sample task order attachment to the RFP stated that offerors should describe all tasks necessary for the effort. As a result, the GAO concluded that offerors were reasonably on notice that the agency would consider the tasks it believed were necessary to perform the sample task.

Waived or Relaxed Requirements

While an unstated evaluation criteria protest ground may concern an agency's application of a requirement that does not exist in a solicitation, the waived or relaxed requirement protest ground involves the agency's failure to apply a solicitation or specification requirement. According to the GAO, "it is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award." Trandes Corp., B-411742, B-411742.2, et al., Oct. 13, 2015, 2015 CPD 317. Thus, where an offeror is awarded a contract despite failing to meet material solicitation requirements, a protester may allege that the agency has waived or relaxed such requirements and has evaluated proposals in a manner inconsistent with the Solicitation. For example, in J Square, Inc. dba University Loft Company, B-407302, Dec. 17, 2012, 2013 CPD ¶ 9, the GAO concluded that the agency had relaxed a material solicitation requirement associated with the procurement of barracks furniture. In particular, the solicitation called for beds with a tool-free assembly. The protester alleged that the agency had failed to evaluate the technical acceptability of the offeror's proposal to ensure that its beds could be assembled without tools and thus relaxed this requirement. The GAO first concluded that "clearly stated technical requirements are considered material to the needs of the government," then sustained the protest, finding that the agency had failed to reasonably evaluate the awardee's technical acceptability.

Similarly, in S.M. Stoller Corporation, B-400937, et al., Mar. 25, 2009, 2009 CPD ¶ 193, the protester contended that the agency had waived or relaxed a material solicitation requirement in its evaluation of the awardee's technical proposal. In that procurement, offerors were required to submit a corrective action investigation plan and a corrective action decision document related to each of several corrective action units associated with environmental remediation service locations. In its proposal, the awardee consolidated three of the corrective action units into a single corrective action unit for purposes of its technical approach. The protester alleged that the agency's acceptance of this technical approach, which deviated from the requirements of the solicitation in a way that other offerors could not have foreseen, was improper. The GAO agreed, sustaining the protest and concluding that the agency had waived or relaxed the requirement to respond to each of the corrective action units separately and did not put offerors on notice that it would accept an offer consolidating the units.

As with any protest ground, an offeror must show not only that the agency waived or relaxed a material solicitation requirement, but also that it was prejudiced. In the context of a waived or relaxed requirement, this does not mean only that an offeror must show that the waiver benefited the awardee. Rather, the protester must demonstrate that it "would have submitted a different proposal or quotation or that it could have done something else to improve its chances for award had it known that the agency would waive the requirement." See Glock, Inc., B-414401, June 5, 2017, 2017 CPD ¶ 180. When an offeror cannot demonstrate what it would have done differently, its protest will be denied. This is an important practice note for drafting protests concerning relaxed or waived solicitation requirements that a protester should include in its initial protest all aspects and allegations forming the basis of its protest, including its basis for prejudice.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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