This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its June 2018 decision in Centerra Group, LLC v. The United States, the United States Court of Federal Claims struck down a contract award after finding that the government evaluators engaged in post-bid improvisations to collect supplementary bidder information, as well as engaged in retroactive record-keeping after their initial evaluation process was legally challenged. The case dealt with a Request for Quotations (RFQ) for guard services at Department of Justice facilities in the Washington, DC area. The complainant, Centerra Group, LLC, brought a legal challenge after losing the bidding process, wherein it claimed that the government’s evaluation process was flawed due to the government’s inconsistent post-bid collection of information from competing bidders.
As the Court noted, government institutions are required to be consistent in how they collect evaluation information from competing bidders and must comply with the statutorily entrenched fairness principles that apply to the evaluation process:
Where, as here, an agency has already conducted two rounds of discussions with offerors remaining in the competition, and allowed proposal revisions after each round, the overwhelming weight of authority is that the agency must conduct any future discussions in conformance with the fairness principles enshrined in FAR Part 15, notwithstanding the fact that the procurement is otherwise governed by FAR Subpart 8.4. This is true for the simple reason that the relevant provisions of FAR Part 15 provide safeguards against communications with the agency which unfairly favor one offeror over another.
The Court cited a series of case law precedents recognizing that government evaluators should be consistent in their collection of information from competing bidders and should not give some bidders an unfair advantage over others in how that information is collected. The Court found that the post-bid information collected by government evaluators allowed Centerra’s competitor, Paragon Systems, Inc., to make material changes (as opposed to “minor clarifications”) to its submissions:
Defendant and Paragon valiantly strive to characterize the communications with Paragon during the remand as clarifications, as did the agency. See ECF No. 44 at 31-33; ECF No. 48 at 11 n.5; ECF No. 49 at 2-3. This is not a close question, however. While some of the communications with Paragon could indeed be classified as clarifications, there are at least two glaring examples of discussions…in the context of the Transition Plan…which provided Paragon with an opportunity to materially revise and modify its proposal. Once these topics were raised with Paragon, discussions occurred.
The Court also found that “Paragon benefited from discussions, whereas Centerra was denied that opportunity” and that these post-bid indulgences allowed Paragon to, among other things, repair a non-compliant aspect of its proposal. The Court ultimately determined that Centerra was prejudiced by these improvised post-bid discussions and that government evaluators engaged in retroactive attempts to substantiate the scores given to Paragon in their initial evaluations after Centerra brought its legal challenge:
After discussions were held with Paragon during the remand, the Technical Evaluation Panel (TEP) met again and decided not to change any of its technical rating scores for the two proposals. ECF No. 32-1 at 29. There were, however, significant modifications of the narrative explaining those scores. See, e.g., id. at 31-33 (quoting all of Paragon’s responses provided during the remand discussions), 34 (adding to the narrative description of two strengths in Paragon’s Service Delivery Plan), 40 (finding an additional strength in Centerra’s Service Delivery Plan), 41-42 (adding a narrative section comparing the offerors’ Service Delivery Plans, and finding “significant differences” in three areas), 43-45 (adding two charts, one a “comparison” of the offerors’ approaches in the three areas of “significant differences,” the other a staffing summary for each offeror). Thus, although the offerors’ technical scores did not fluctuate after discussions were held with Paragon during the remand, the underlying rationale for those ratings was fundamentally altered by the TEP. Many of these changes appear to be attempts by DOJ to justify its award to Paragon in light of the arguments raised by Centerra in this bid protest.
The Court referred to a long line of U.S. Government Accountability Office (GAO) cases that recognized the reduced probative value and credibility of after-the-fact revisions to initial government evaluation records:
There is a long line of precedent at the GAO which regards post-protest reevaluations of proposals to be of lesser probative weight, when those reevaluations are proffered by the agency as evidence that the protestor has not been prejudiced by the agency’s procurement errors. The agency typically argues that its procurement errors did not prejudice the protestor because a corrective reevaluation of proposals still arrives at the same award result. See, e.g., Boeing Sikorsky Aircraft Support, B-277263, B-277263.2, B-277263.3, 97-2 CPD ¶ 91, 1997 WL 611539, at *11 (Comp. Gen. Sept. 29, 1997) (“It is on the basis of this post-protest reevaluation that the agency argues that any errors in its process did not prejudice [the protestor].”). The GAO considers these reevaluations to be of less value than pre-protest proposal evaluations, in some circumstances, because the reevaluations were “made in response to protest contentions.” Id. (citations omitted). Analyses prepared “in the heat of an adversarial process . . . may not represent the fair and considered judgment of the agency, which is a prerequisite of a rational evaluation and source selection process.”
As the Court concluded, the credibility of post-complaint revisions to evaluation records must be taken with a grain of salt due to the inherent risk that such revisions could be self-servingly geared towards defending against a pending legal challenge. The Court ultimately sustained the protest, struck down the contract award, and ordered the government to allow all bidders an equal opportunity to submit revised information before re-evaluating their bids.
As this case illustrates, while it may be permissible to collect post-bid information in support of complex evaluations, that information should be collected in a consistent manner that provides all bidders with an equal opportunity to compete. Government evaluators should not tilt the playing field to the benefit of specific suppliers, or retroactively alter evaluation records to paper over irregularities. To bolster the defensibility of an evaluation process, the best course is to ensure that the evaluation process is transparently established ahead of time in support of fair competition and then evidenced by the real-time collection of accurate evaluation records.
