Losing a federal contract because the government determined that your proposal was technically unacceptable can be frustrating — and potentially expensive. But an unfavorable technical evaluation does not necessarily mean that the agency got the procurement right. If your proposal was rejected as technically unacceptable, there are several issues you should examine promptly.
Did the Agency Apply an Unstated Evaluation Requirement?
One of the first questions to ask is whether the agency evaluated your proposal against requirements that were not actually included in the solicitation. The solicitation should tell offerors what the agency intends to evaluate and, generally, how those requirements will be evaluated. An agency may not ordinarily use undisclosed evaluation criteria to determine whether a proposal is acceptable.
For example, suppose an RFP requires offerors to describe their approach to staffing but does not establish a particular staffing ratio, certification, or experience requirement. If the agency subsequently rejects a proposal because it did not satisfy a staffing standard that appeared nowhere in the solicitation, that may present a protest issue. The key is to compare the evaluation record with the actual language of the solicitation — not simply with what the agency says the requirement meant after proposals were submitted.
Did the Agency Misread Your Proposal?
Another potential protest issue arises when the agency overlooks, misunderstands, or unreasonably interprets information contained in your proposal. This can happen in several ways. An evaluator may conclude that a required capability is missing when it appears elsewhere in the proposal. An evaluator may interpret an ambiguous passage in a way that is inconsistent with the proposal as a whole. Or the agency may overlook information that directly addresses a solicitation requirement. A protest based on this type of error should identify the specific solicitation requirement, point to the portion of the proposal that addresses it, and explain why the agency’s interpretation was unreasonable.
Did the Agency Treat Your Proposal Differently From Your Competitor’s?
Unequal treatment can be a significant protest issue. For example, an agency may identify a deficiency in your proposal based on a particular requirement while accepting seemingly similar information in another offeror’s proposal. Likewise, the agency may criticize your proposed approach while overlooking the same characteristic in the awardee’s proposal.
Did the Agency Identify a Deficiency That the Solicitation Did Not Support?
A technical deficiency can be protestable if the agency’s conclusion is inconsistent with the solicitation. This is particularly important when the solicitation contains detailed technical requirements. Start by identifying the precise requirement the agency says your proposal failed to satisfy. Then examine the solicitation carefully and ask the following questions:
- Was the requirement mandatory?
- Was it actually stated in the solicitation?
- Did the solicitation define the term the agency relied upon?
- Did the agency interpret the requirement differently from the way a reasonable offeror would have understood it?
- Did an amendment change the requirement?
Sometimes a protest issue becomes apparent only after comparing the agency’s evaluation with the solicitation’s exact language.
Did the Agency Fail to Follow the Solicitation’s Evaluation Scheme?
Agencies generally must evaluate proposals in accordance with the solicitation. That does not mean every evaluation must follow a rigid mathematical formula. But if the RFP establishes specific evaluation factors, subfactors, weighting, or other evaluation methodology, the agency generally must follow that framework.
A potential protest issue may arise if the agency:
- Evaluated a factor that was not disclosed;
- Failed to evaluate a required factor;
- Applied different weighting than the solicitation specified;
- Gave substantial importance to a consideration that the solicitation did not identify; or
- Used an evaluation methodology inconsistent with the stated criteria.
The solicitation should thus be the starting point for analyzing a technical rejection. The question is whether the agency evaluated the proposal in the manner the solicitation required.
Was the Agency’s Evaluation Unreasonable or Unsupported?
Federal procurement officials are given a certain degree of discretion, but that discretion is not unlimited. A technical evaluation may be vulnerable if the agency’s conclusions lack a reasonable basis or are contradicted by the contemporaneous record.
For example, an evaluator might conclude that an offeror lacks relevant experience even though the proposal identifies multiple projects that appear to satisfy the solicitation’s stated experience requirements. Or the agency might identify a technical weakness without explaining how the proposal failed to meet the applicable requirement.
The strength of such a protest often depends on the administrative record. A well-developed protest identifies the specific evaluation conclusion, the evidence the agency relied upon, and the reason that conclusion was unreasonable.
Did the Agency Give You a Deficiency Without an Opportunity to Address It?
If the procurement involved discussions, exchanges with offerors may raise additional issues. For negotiated procurements, the agency’s communications with offerors and the deficiencies or weaknesses identified during discussions can be important. A protest may be appropriate if the agency failed to provide meaningful discussions concerning a material deficiency or otherwise failed to comply with the applicable procurement rules.
The analysis is highly fact-specific. Not every weakness must necessarily be discussed, and the rules can differ depending on the procurement procedure being used. That is why contractors should preserve all communications with the contracting officer and evaluation team and carefully compare them with the final evaluation.
Did the Agency Reject Your Proposal Without Adequate Documentation?
Documentation can be critical in a bid protest. An agency does not necessarily have to produce an exhaustive explanation for every aspect of an evaluation. But the procurement record should provide a reasonable basis for the agency’s decision. If the record does not adequately explain why a proposal was found technically unacceptable, that may raise questions about whether the evaluation was reasonable and consistent with the solicitation.
A contractor should thus look beyond the final adjectival rating. The underlying evaluation documentation, evaluation notices, consensus reports, source-selection documents, and debriefing materials may reveal whether the agency actually supported its conclusions.
Did the Agency Make a Prejudicial Error?
Identifying an error is only part of the analysis. In most bid protests, the protester also must establish that the error was prejudicial — that is, that there was a reasonable possibility that the error affected the protester’s competitive position.
For instance, if an agency incorrectly identified a minor issue in a proposal but the proposal would have remained technically unacceptable for several independent reasons, correcting the error may not change the outcome. By contrast, if the challenged deficiency was the principal reason the proposal was rejected and removing that deficiency could have made the proposal eligible for award, the prejudice analysis may be substantially stronger. This is one reason it is important to analyze the entire evaluation rather than focusing on a single unfavorable comment.
Do Not Wait Too Long to Analyze Your Options
Timing is critical in a bid protest. A contractor that receives an unfavorable award decision should promptly determine:
- When the agency notified it of the award;
- Whether a debriefing is available;
- When the contractor requested the debriefing;
- What information the debriefing provides;
- Which protest forum may be available;
- What filing deadline applies; and
- Whether a protest could affect the government’s ability to proceed with performance.
The applicable deadlines can depend on the procurement, the protest forum, and the type of challenge being brought and, in some procurements, the clock for filing a protest can begin ticking at the time of contract award. A contractor should not assume that requesting a debriefing necessarily tolls the time for filing a protest, nor that receiving a debriefing automatically gives it the same amount of time in every circumstance.
What Should You Do After a Technical Rejection?
If your proposal was rejected as technically unacceptable, preserve the entire procurement file while the events are still fresh. At a minimum, gather:
- The solicitation and all amendments;
- Your submitted proposal and proposal revisions;
- Questions and answers issued during the solicitation process;
- Communications with the contracting officer;
- Notices of exclusion or award;
- Debriefing materials;
- Evaluation notices and agency correspondence;
- Any information concerning the awardee that is lawfully available; and
- Internal records showing how your proposal addressed the solicitation requirements.
Then compare the agency’s stated reasons for rejection against the actual solicitation and your proposal. The most useful question is not simply, “Why did we lose?” It is, “Did the agency have a reasonable and solicitation-consistent basis for finding our proposal technically unacceptable?” That distinction can determine whether you have a viable protest.
Technical Rejection Does Not Necessarily End the Matter
A technical rejection can be the result of a legitimate evaluation judgment. But it can also result from an agency applying an unstated requirement, misunderstanding a proposal, treating offerors unequally, failing to follow the solicitation, or otherwise making an unreasonable evaluation.
Because bid protest deadlines can be short, contractors should consider obtaining experienced legal advice promptly after receiving an exclusion notice, award notification, or debriefing.
A careful review of the solicitation, proposal, evaluation, and available procurement record can help determine whether the agency’s decision was reasonable — and whether a protest may provide a meaningful opportunity for corrective action.
If you have any questions about the foregoing or require assistance, please do not hesitate to contact Aron Beezley or Gabby Sprio.