This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its January 2019 decision in Soft Tech Consulting, Inc., the U.S. Government Accountability Office (GAO) ordered a re-evaluation after finding an inconsistent assessment of proposed personnel in competing bids and the absence of proper contemporaneous records of the evaluation process. The dispute dealt with a Request for Quotations (RFQ) issued by the Department of Homeland Security for software development services. The GAO sustained the protest after finding an inconsistent evaluation of competing proposals and a lack of records to support the reasons behind the evaluation inconsistencies:
Soft Tech argues that the agency unreasonably evaluated its quotation as unsatisfactory under the staffing approach factor. The firm maintains that it exclusively quoted mid- to senior-level personnel for each position as indicated in its quotation, and a reasonable review of its FSS schedule contract would have indicated that its proposed personnel satisfied the RFQ’s requirements to be mid-to senior-level. Protest at 8. Soft Tech also contends that the agency disparately evaluated quotations, as it rejected Soft Tech’s quotation due to an apparent failure to quote personnel with the desired level of experience, but found Dev Tech’s quoted personnel acceptable despite Dev Tech’s personnel having the same or lesser experience. Protest at 10-12; Comments at 7-9. Finally, Soft Tech alleges that the agency has not adequately documented the bases for its evaluation of quotations. Comments at 4-7. Based on our review of the record, we sustain the protest because the agency’s evaluation documentation is inadequate to support the reasonableness of its disparate treatment of quotations.
The GAO also found that the government’s after-the-fact attempts to explain the evaluation irregularities were inadequate. As the GAO concluded, while subsequent explanations of an evaluation record may be accepted to explain an evaluation outcome, retroactive rationales cannot be relied on to plug holes in the original evaluation record:
In a post-comments submission, the agency attempts to fill in the gaps left by the sparse contemporaneous record. The agency notes that our Office has found that post-protest explanations can provide additional details about the TEC’s evaluation if they are consistent with the contemporaneous record. AR, Reply to Protester’s Comments on the Agency Report, at 2 (citing ITT Fed. Servs. Int’l Corp., B-283307, B-283307.2, Nov.3, 1999, 99-2 CPD ¶ 76 at 6).The agency first contends that “Soft Tech’s GSA labor categories did not provide an adequate description of the functional responsibilities to be performed by an individual in the category” and that “the deficiency assigned to Soft Tech’s [s]taffing [a]pproach was not specifically related to whether the experience qualifications of the labor categories proposed were sufficient to meet the mid or senior level requirement.”Id.at6-7. The agency also attempts to expand upon why it only assigned Dev Tech’squotation a weakness for its confusion over the Tester role discussed above, explaining that the TEC reviewed Dev Tech’s schedule contract and determined that the role quoted would have the capacity to perform the requirements of the RFQ. AR, Tab 18,Second Declaration of TEC Chair, at 1.
We find that the contemporaneous record does not support the agency’s contentions. See CeltaServs., Inc., B-411835, B-411835.2, Nov.2, 2015, 2015 CPD ¶ 362 at 9
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In sum, the agency’s documentation is inadequate to support the reasonableness of its disparate treatment of the vendors. The limited record does not explain why the agency reached disparate results when tasked with reviewing Soft Tech and Dev Tech’s FSS contracts. See Immersion Consulting, LLC, B-415155, B-414155.2, Dec. 4, 2017, 2017 CPD 373 at 5-6 (protest of procurement conducted pursuant to FAR subpart 8.4 is sustained where the contemporaneous record was inadequate to support the reasonableness of the agency’s evaluation). Moreover, the agency’s post-comments attempts to address gaps in the record are inconsistent with the contemporaneous record. Under the circumstances, this failure renders the agency’s evaluation of quotations unreasonable.
The GAO therefore recommended that the government re-evaluate the quotations and properly document its re-evaluation prior to making a new contract award decision. As this case illustrates, retroactive explanations are no substitute for properly conducting and documenting an evaluation process in the first instance.
