Give Credit Where Credit is Due: Agency’s Improper Evaluation of Past Performance Warrants GAO to Sustain Protest
Article by: Tyson Marx
Heading into this Fall’s protest season, it is important that contractors take a close look at recent protests sustained by GAO in order to recognize the signs of a potentially flawed procurement. The most recent protest GAO sustained reveals the importance of delving into the factual record present in the Agency Report.
On August 6, 2026, GAO released the public decision sustaining the bid protest of Veros Real Estate Solutions, LLC (Veros), who challenged the VA’s award of an automated appraisal management services (AMS) contract to Lynch Consultants, LLC (Lynch).
After reviewing the full Agency Report, GAO determined that VA’s past performance evaluation was unreasonable because it did not actually take into account the relevance of the past performance of either the awardee or protester.
Specifically, GAO found VA evaluated relevance and confidence based on CPARS reports it independently located for each offeror. The problem with the VA’s evaluation, however, was that the VA credited Lynch with relevant experience in records management, training, and change management based on language in Lynch’s CPARS narrative. But the language VA cited actually described the duties of the HHS program office itself, not work Lynch performed under the contract.
GAO agreed with Veros that the agency essentially attributed the government customer’s own responsibilities to the contractor. Even setting that error aside, GAO found the agency’s relevance findings were conclusory: the record never explained how, for instance, a passing mention of “records management” in a CPARS report was actually comparable to eight dense pages of IT and online-accessibility requirements in the solicitation’s PWS. The same pattern recurred across Lynch’s other CPARS reports, including two subcontractor task orders.
Because relevancy was a threshold requirement under the RFP’s terms, GAO concluded that Lynch’s Substantial Confidence rating was itself unreasonable and inadequately documented. Notably, the VA did not contest this protest ground in its supplemental briefing, leaving it effectively unrebutted.
Because the SSA’s tradeoff decision rested explicitly on the premise that Lynch and Veros were of equivalent merit under the non-price factors, making price the tiebreaker, the flawed past performance evaluation undermined the entire best-value rationale. Thus, Veros was competitively prejudiced. GAO recommended that the VA reevaluate past performance consistent with the RFP terms, the FAR, and the deficiencies identified, document that evaluation adequately, and issue a new source selection decision.
One important point if you are considering a protest: Veros could not have made these arguments without its counsel getting access to the proposals and evaluations of both Veros and Lynch through the protest process (under a protective order, of course). While the record a protester is entitled to at GAO is much smaller than what can be had at the Court of Federal Claims, with the right protest grounds your counsel can still get access to important decision documents. Here, Veros was able to get access to the VA’s evaluation of both Veros and Lynch because they had legitimate protest grounds regarding the Agency’s past performance evaluation of the two entities. A protester filing without legal counsel can only access their own proposal materials. In other words, without protest counsel, your grounds (and chances for success) are severely limited.
It is important to remember that even though GAO sustained Veros’s protest, “winning” a protest does not always equate with a sustain. In fact, in FY25, GAO’s sustain rate was only 14%. Compare this with GAO’s 52% effectiveness rate for bid protests overall in FY25. The bulk of this high effectiveness rate comes from agencies taking corrective action in response to a protest. Bottom line: protests at the GAO are still an effective tool to ensure procurements are carried out in a fair fashion and in accordance with the terms of a solicitation.