This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
As recent U.S. Government Accountability Office (GAO) rulings illustrate, the failure to properly score non-price factors can undermine the legal defensibility of evaluation and award decisions. These cases serve as reminders to public institutions across all jurisdictions of the importance of establishing and applying defensible scoring procedures for non-price criteria.
For example, in its April 2022 decision in CACI, Inc.-Federal, the GAO ordered a re-evaluation after finding that the original evaluation failed to qualitatively score corporate experience and instead assessed that experience on a pass-fail basis. The dispute dealt with a Request for Proposals (RFP) issued by the Department of Homeland Security for information technology management and support services. While the Department argued that it followed its evaluation criteria and engaged in a comparative qualitative analysis of the corporate experience of competing bidders, the GAO disagreed, finding that the evaluation record “does not demonstrate that the agency considered the offerors’ corporate experience on anything other than a pass/fail basis.” After concluding that “there is no basis to conclude that the agency evaluated or considered corporate experience in a manner consistent with the stated terms of the RFP”, the GAO sustained the protest and ordered the Department to perform a re-evaluation and properly document that re-evaluation.
Similarly, in its May 2022 decision in AT&T Mobility LLC, the GAO issued a re-evaluation or redraft and re-tender order after finding that the government conducted a flawed “best-value” assessment. The dispute dealt with a Request for Proposals (RFP) issued by the Department of Homeland Security for cellular communications services and equipment. The complainant alleged that the Department improperly converted the “best-value” assessment in the RFP into a “lowest-priced, technically acceptable (LPTA) procurement”. The GAO agreed, finding that the RFP’s best-value evaluation called for the qualitative assessment of technical factors that exceeded the minimum requirements, rather than a low-bid assessment of proposals that simply met those minimum technical requirements.
However, the GAO found that the evaluation was “devoid of any meaningful qualitative analysis of proposals under the technical factor” since the agency “improperly evaluated on the basis of the pass/fail matrix” before making its ultimate decision based on lowest price. As the GAO stated, “agencies cannot announce in a solicitation an evaluation scheme that provides for a trade-off analysis with the technical factors being considered more important than price and then disregard the stated evaluation scheme and make award on a lowest-priced, technically acceptable basis.” The GAO ordered the Department to either re-evaluate the proposals based on the original evaluation rules, or redraft and re-tender its requirements based on revised evaluation rules.
Further, in its June 2022 decision in Sabre Systems, Inc., the GAO ordered a re-evaluation after finding that that the government failed to properly evaluate each bidder’s proposed compensation plan for professional employees. The dispute dealt with a Request for Proposals (RFP) issued by the Department of the Navy for “mission system software engineering, development, integration, testing, and in-service support for U.S. Naval aircraft major defense acquisition programs.” The GAO found that the evaluators improperly interpreted the scope of “professional employees” and failed to fully evaluate each bidder’s proposed compensation plan.
As the GAO noted, the evaluators “determined that only a small subset of four labor categories required by the solicitation–i.e., journeyman systems engineer, senior systems engineer, journeyman test engineer, and senior test engineer–were ‘professional employees’” for the purposes of the evaluation and did not evaluate other employees that also fell within that category. The GAO found that this interpretation was inconsistent with the applicable provisions of the Federal Acquisition Regulation, which required that all employees falling within the definition of “professional employees” should be evaluated as part of the evaluation of a bidder’s proposed compensation plan. The GAO ordered the Department to conduct a re-evaluation.
Finally, in its June 2022 decision in Seaward Services, Inc., the GAO ordered a re-evaluation after finding that the original evaluation resulted in the unreasonable scoring of the complainant’s technical experience. The dispute dealt with a Request for Proposals (RFP) issued by the Department of Homeland Security for management and support services. The GAO found that the evaluators unfairly awarded the winning bidder, who was unable to show direct experience operating aluminium-hulled vessels, more points in that category than they awarded the complainant, who was able to show that direct experience. The GAO concluded that the evaluators failed to properly apply the evaluation criteria and ordered a re-evaluation.
As these decisions illustrate, purchasing institutions should ensure that they clearly define the evaluation rules they will apply to the evaluation of non-price criteria and should ensure that they follow those rules during their evaluations since a lack of precision can undermine the defensibility of contract award decisions.
