This article is an excerpt from the 2020 edition of The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its November 2019 decision in Blue Origin Florida, LLC, the U.S. Government Accountability Office (GAO) upheld a legal challenge brought against a vague evaluation scheme. The dispute dealt with a Request for Proposals (RFP) issued by the Department of the Air Force for commercial launch services for space launch missions. The complainant challenged the lack of transparency in the evaluation plan, which purported to award two separate contracts based on the best fit between separate proposals. The GAO sustained the protest, finding the evaluation scheme failed to meet proper transparency standards and left too much latitude for an arbitrary evaluation and award decision.
As the GAO explained, rather than conducting separate evaluations between competing proposals and then ranking the proposals separately to award the two contracts to the top two proposals, the Air Force instead planned on evaluating an overall solution based on combining different pairings of the separately submitted proposals:
…the Air Force intends to conduct a tradeoff between paired proposals, for example, the AB proposal pairing and the AC proposal pairing, and then between the AB proposal pairing and the AD proposal pairing. COS at 13. The contracting officer explained that this approach will provide “a little leeway in how the [source selection authority (SSA)] will actually decide which pair of proposals are the best value when combined.” Id. at 14. As an example of how this “leeway” might work, the contracting officer provided a hypothetical wherein the two highest individually ranked proposals might not be the best pair when taken in combination. In the hypothetical, notwithstanding that the two independently developed and submitted proposals, when individually assessed against the RFP’s specified evaluation criteria, would be the highest rated proposals, if the Air Force determined that the proposals did not offer complementary attributes (for example, the two highest rated offerors shared common weaknesses under one subfactor), and a third offeror, although generally not as highly rated, offered complementary attributes (for example, although perhaps being overall technically weaker, but not sharing common weaknesses) to the highest rated offeror, then the first and third rated proposals, when combined, would present the best value to the government.
As the protestor asserted, this evaluation scheme failed to provide potential bidders with a proper understanding of how they were supposed to compete for the contract award:
Blue Origin argues that the Air Force’s “when combined” best-value methodology is ambiguous, as it indicates that each proposal will not be evaluated based on the merits of its own proposal against the RFP’s specified evaluation criteria, but rather, will be evaluated based on how well an individual proposal complements another unknown proposal with unknown qualities. The protester effectively argues the RFP’s evaluation criteria, and their relative weightings, when applied to an individual proposal will be divorced from the agency’s best-value analysis, which will be based on undisclosed and subjective evaluation considerations such as the relative strengths and weaknesses of paired proposals that were independently developed and submitted by different offerors. Without knowing the relative factors on how the combined proposals will be evaluated, or how an offeror can intelligently compete for award where it has no insight into, let alone the ability to align, complementary attributes with another independently developed and submitted proposal, Blue Origin argues that the RFP fails to provide an intelligible and common basis on which offerors are expected to compete.
The GAO noted that bid solicitations must contain enough information to allow bidders to intelligently compete on equal terms, and that the failure to disclose relevant evaluation factors undermines open competition:
Consistent with these requirements, we have recognized that a solicitation must contain sufficient information to allow offerors to compete intelligently and on equal terms. Global Tech. Sys., B-411230.2, Sept. 9, 2015, 2015 CPD ¶ 335 at 19. Our decisions have further recognized that intelligent competition assumes the disclosure of the evaluation factors to be used by the procuring agency in evaluating offers submitted and the relative importance of those factors. Only through such disclosure can an offeror know what factors the agency cares about and to what relative extent; competition is not served if offerors are not given any idea of the factors and their relative values, on which the government will select an offer for award. Richard S. Cohen, B‑256017.4, B‑256017.5, June 27, 1994, 94-1 CPD ¶ 382 at 6. The RFP here fails to provide an intelligible and common basis for award where the agency expressly anticipates not making the source selection decisions based on the evaluation of individual proposals as evaluated against the RFP’s specified evaluation criteria, but rather anticipates evaluating pairings of proposals using the undefined criterion of whether two individually developed and submitted proposals are the most complementary of one another.
Furthermore, the GAO was not convinced that the Air Force would restrict itself to the disclosed evaluation factors when it assessed combined proposals against the evaluation criteria since the stated criteria in the RFP were developed to assess individual proposals but did not explain with enough detail how different separate proposals would be combined and then assessed together by evaluators:
Contrary to the Air Force’s argument that the only relevant evaluation factors, and their relative weightings, are those set forth in the RFP, it is not clear that the agency’s “when combined” best-value analysis will actually be so restricted. For example, in the contracting officer’s hypothetical discussed above where the top two individually rated proposals under the RFP’s evaluation criteria may not ultimately be found to offer the best value to the government “when combined,” the Air Force essentially submits that it has the discretion to deviate from the RFP’s evaluation criteria, or at least their relative weightings. In the contracting officer’s hypothetical, he identifies a potential scenario involving the top two rated proposals following the agency’s evaluation of individual proposals using the RFP’s enumerated evaluation criteria, and a third, lesser rated proposal. The contracting officer then suggests that if the top two proposals share common weaknesses (or ostensibly strengths) under certain evaluation factors or subfactors, the agency would look to whether the third ranked offeror, while individually lower rated than the second place offeror, had different weaknesses (or ostensibly strengths) that were not offered by the highest rated proposal. Under this scenario, the agency argues that award to the individually rated first and third proposals would be more advantageous to the government, when combined, because they offer complementary strengths or weaknesses, versus award to the two individually highest rated proposals, which offer overlapping strengths or weaknesses.
As the GAO determined, the core problem with this scheme was that proponents would ultimately not be evaluated based on the merits of their own proposals, but based on how they matched up with other proposals over which they had no control:
The problem with this approach, however, is that the second ranked offeror’s proposal is not actually being assessed for award based on the merits of its own proposal against the RFP’s specified evaluation criteria (or the specified weightings), or the relative merit of its proposal against the other offerors’ individual proposals. In this regard, the agency would be evaluating the second and third ranked offerors using a new, undefined evaluation criterion of whether those offerors offer sufficiently distinct or complementary attributes as compared to the highest individually ranked offeror. Thus, the agency’s own hypothetical application of its methodology highlights that the RFP’s enumerated evaluation criteria or their relative weight may not ultimately be the basis for the actual source selection. Therefore, we find that the RFP’s basis for award methodology fails to reasonably (1) represent the key areas of importance and emphasis to be considered in the source selection decision, and (2) support meaningful comparison and discrimination between and among competing proposals, as required by FAR § 15.304(b).
The Air Force repeatedly argues that it has informed offerors of the evaluation factors that will be used to evaluate their proposals, and thus, provided a common basis for competition. In other words, in order to improve its chances for receiving an award, the agency argues that an offeror should submit its strongest possible proposal in response to the RFP’s specified evaluation criteria. This line of argument, however, is unpersuasive because as addressed above, award may not primarily be based on whether an offeror submitted the strongest possible proposal in response to the RFP’s evaluation criteria. Rather, award may ultimately turn on whether the unique attributes of the offeror’s proposal sufficiently complement another offeror’s proposal so as to offer the government the most combined best value.
As the GAO concluded, short of colluding with other proponents to co-ordinate their submissions, proponents would have no way of intelligently competing for the opportunity since they could not control their compatibility with other separate proposals:
Offerors, of course, have no control over the proposal strategy or contents of another offeror’s proposal. Indeed, short of colluding with other potential offerors to coordinate their respective proposals, it is not apparent how an offeror could intelligently compete when its ability to receive a contract award is not predicated on the merits of its own proposal, but rather, is dependent on its general compatibility with a proposal independently developed and submitted by another offeror. See FAR § 3.301(a) (noting anticompetitive practices can include collusive bidding or sharing of the business); id. at § 3.303(c)(1) (identifying as a practice that may evidence violation of federal antitrust laws the filing of a joint bid by two or more competitors when at least one of the competitors has sufficient technical capability and productive capacity for contract performance). On this record, we cannot conclude that the RFP’s basis for award is sufficient to provide an intelligible and common basis for competition, and therefore we sustain the protest on this basis.
The GAO therefore upheld the legal challenge.
As this case illustrates, purchasing institutions must ensure that their evaluation plans are transparent so that competing bidders clearly understand the ground rules by which evaluation and award decisions will be made so that they can submit bids that are responsive to those requirements.
