GAO: Factors “Logically Encompassed By” the Solicitation Are Fair Game for Evaluation

When evaluating proposals, an agency must stick to the evaluation criteria identified in the solicitation. It cannot depart from the solicitation by evaluating against unstated criteria.

Though this sounds like a bright-line rule, it’s not so simple. A recent GAO decision shows that agencies have discretion to evaluate against items “logically encompassed by” the solicitation’s requirements—even if those items aren’t clearly spelled out.

GAO’s decision in Trailboss Enterprises, Inc., B-419209 (Dec. 23, 2020) is instructive for several reasons. But of import here, GAO discussed an agency’s ability to consider issues relevant to—but perhaps not directly spelled out by—the solicitation.

At issue was an Immigration and Customs Enforcement solicitation for detainee transportation services in the San Antonio, Texas area. After Trailboss lost out on the award, it protested ICE’s evaluation decision, arguing that several aspects were flawed. 

Specifically, Trailboss challenged a deficiency assigned to it for its failure to demonstrate how it would meet the PWS’s information technology security requirements. Trailboss’s proposal offered only conclusory assurance that it would “adhere to all basic [IT] security requirements outlined in the PWS,” and would comply with all post-award IT security plan deliverables. ICE found this deficient, asserting that it did not demonstrate sufficient understanding of the PWS requirements.

Trailboss believed ICE’s standard represented an unstated evaluation criterion. According to Trailboss, the IT security plan was not a PWS requirement but, instead, only a post-award data deliverable. Thus, Trailboss believed it was improper for ICE to evaluate its proposal for IT security requirements.

GAO disagreed. The RFP instructed offerors to propose a technical approach that demonstrated a “clear and full understanding” of the PWS’s technical requirements. The PWS, moreover, included “an in-depth list of IT security requirements, with 28 enumerated subtasks.”

True, a solicitation must identify all major evaluation factors. But agencies “are not required to specifically identify each and every element an agency considers during an evaluation.” An agency “may take into account specific, albeit not expressly identified, matters that are logically encompassed by or related to the stated evaluation criteria.” 

Here, because the agency was evaluating the offerors’ understanding of the PWS requirements, and because the PWS included IT security requirements, ICE’s consideration of Trailboss’s understanding of the IT security requirements was not an unstated evaluation criteria.

GAO denied Trailboss’s protest.

This decision shows how tricky evaluations can be: an offeror’s failure to comply with criteria “related to” the evaluation’s stated factors can lead to its exclusion from competition.

So what’s an offeror to do? Though I’m no expert on proposal preparation (and though this blog isn’t legal advice), I have a few suggestions:

First, offerors should review the solicitation closely and ensure they understand all aspects of what’s being requested. Ask questions of the agency regarding the scope of the solicitation and how proposals will be evaluated. And, if any of the evaluation factors are vague or unclear, consider filing a pre-bid protest challenging those terms.

Second, avoid conclusory statements in a proposal. Where you can, do your best to explain how you’ll meet each requirement, rather than just saying you’ll do so. As my colleague Ian Patterson recently observed: “Do not assume that an agency can or will infer capabilities about your business.” 

Again, Trailboss is an interesting decision because it helps explain GAO’s thoughts on this important evaluation issue. But if you have any questions about proposal evaluations or bid protests, please reach out.