By: Paul Emanuelli
This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide.
In its June 2019 decision in ArnAmy Inc. v. Florida Department of Management Services, the Florida Division of Administrative Hearings rejected claims by a losing bidder that the government evaluators lacked the necessary experience and training to properly evaluate the competing proposals. The dispute dealt with a request for proposals (RFP) for the award of multiple contracts for information technology staff augmentation services with a total estimated value of approximately $67 million. A losing bidder claimed that the evaluators lacked the qualifications and training required to evaluate the competing bids, particularly since they lacked prior information technology experience:
B. The Scoring Team was Not Qualified to Score the Proposals:
ArnAmy also charges that the Department failed to properly train the three Evaluators or provide them adequate guidance on how to effectively score the vendors’ proposals. Specifically, ArnAmy asserts that the Department failed to select Evaluators with the requisite background, experience, and knowledge in the subject matter of the RFP, i.e., information technology. Consequently, the Evaluators could not have conducted a comprehensive or sound review of the IT staffing services listed in the RFP. In other words, the Department could not have competently or fairly decided that ArnAmy should not be awarded an IT staff augmentation contract because the Evaluators did not know how to properly score its proposal.
To support its argument, ArnAmy points out that not a single Evaluator possessed IT experience. ArnAmy contends that the technical details involved in evaluating proposals for IT staff services require direct experience in the IT field or in acquiring and/or utilizing IT staffing services. Because the Evaluators were unqualified, as well as the fact that the Evaluators were under time pressure to evaluate all 374 proposals, ArnAmy alleges that they inconsistently applied the RFP’s evaluation criteria, and, in some cases, failed to apply it altogether.
The Department countered this claim by asserting that information technology experience was not necessary to assess the proposals since the core requirement in question was recruiting and staffing services:
Regarding training the Evaluators, Mr. Nilson conveyed that the Department anticipated that scoring would be fairly straightforward. Therefore, the Department did not plan a lengthy training regime for the Evaluators. Mr. Nilson further commented that the grading criteria described in the RFP did not require specific knowledge of IT services. The Evaluators were to review how each vendor proposed to hire, manage, and retain persons with IT skills. The Evaluators were not scoring the specialized knowledge of the vendors or their employees.
Before starting their reviews, the Department arranged for each Evaluator to receive a copy of each proposals’ Management Plan and IT Staff Contract Experience section. The Evaluators also received an Evaluators Guide, as well as Instructions for the Evaluator Score Sheet. Each Evaluator also received and signed a document entitled Evaluator Instructions for Ethics, Sunshine Law, and Conflict of Interest. Finally, the Procurement Officer, Mr. Atkinson, contacted each Evaluator separately to explain their role and answer any questions.
The RFP gave the three Evaluators eight weeks to review and score every proposal. Mr. Nilson envisioned the Evaluators spending approximately 30 minutes on each proposal. Mr. Nilson recognized that the scoring would entail hard work, but he was comfortable that the Evaluators would have enough time to perform their responsibilities.
The Court agreed with the Department, finding that the evaluators were “suitably qualified to score the vendors’ proposals” and found the complainant’s arguments “insufficient to reverse the Department’s award.” In fact, the Court rejected the complainant’s “evaluator incompetence” allegations after finding that the evaluators had sufficient knowledge and experience to evaluate staff recruitment services, that specialized knowledge in information technology was not necessary to assess the proposals, and that, apart from some minor discrepancies that the evaluators were directed to rectify, each of the three evaluators had conducted a proper evaluation of the proposals:
As found in paragraphs 86 through 113 above, the evidence in the record shows that the persons the Department assigned to the Scoring Team each possessed the sufficient experience and knowledge to evaluate the program areas and service requirements awarded under the RFP. Mr. Nilson credibly testified that the solicitation’s basic objective was to procure IT staff assistance and support, not select third-party businesses who would perform or supervise IT projects. The RFP’s goal was to identify companies that would capably recruit qualified persons, then manage those persons to ensure that Customers’ needs were effectively and efficiently met. Mr. Nilson persuasively asserted that an extensive knowledge of IT issues and fundamentals was not necessary for the RFP’s evaluators.
In consideration of the RFP’s focus on “human resources,” the three Evaluators met the standard required under section 287.057(16)(a)1. Based on their testimony, both Ms. Reaves and Ms. Shoup evinced extensive involvement in hiring, training, and managing employees. For her part, Ms. Roberts possessed broad experience in procuring contractual services through their current and prior work responsibilities, including IT staff augmentation solicitations. In addition, all three Evaluators convincingly testified that, prior to scoring, each understood their responsibilities, as well as the particular subject matter of, and the criteria set forth in, the RFP.
Further, the evidence shows that the Evaluators competently executed their duties as the RFP’s Scoring Team. At the final hearing, each Evaluator confidently and methodically explained the scores they awarded for the Management Plans and IT Staff Contract Experience for both ArnAmy and Seva. Each Evaluator independently formulated her scores following a good faith consideration of the RFP criteria. Neither ArnAmy nor Seva presented evidence showing that the Evaluators acted arbitrarily or irrationally (with one exception described in paragraph 93 above regarding ArnAmy’s IT Staff Contract Experience). Neither did they establish that actual or specialized IT expertise was necessary in order to render a fair and reasonable score for proposals to provide IT staff services. Accordingly, Petitioners failed to prove that the RFP Scoring Team lacked the collective experience and knowledge regarding the contractual services sought through this solicitation to evaluate, then score, the vendors’ proposals.
As this case illustrates, the composition and competence of evaluation team members remains legally challengeable in public sector procurement. This case therefore serves as a useful reminder of the degree of scrutiny faced by evaluation teams in bidding competitions. Public institutions should ensure that their evaluation team members have the necessary experience and training needed to conduct defensible evaluations.
