This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
Recent rulings by the U.S. Government Accountability Office (GAO) underscore the importance of maintaining evaluation records to ensure the defensibility of evaluation and award decisions. As these decisions illustrate, the failure to maintain proper evaluation records can undermine the legal defensibility of contract award decisions.
For example, in its September 2021 decision in Marquis Solutions, LLC, the GAO ordered a re-evaluation after finding weak evaluation records in support of the initial evaluation and award decision. The bid protest dealt with a Request for Quotations (RFQ) issued by the Department of Veterans Affairs for medical courier services in the New York metropolitan area. The complainant argued that the Department “misevaluated” quotations and made an unreasonable source selection decision. The GAO agreed, finding that “the agency’s evaluation conclusions relating to the Marquis quotation reflect a fundamental failure to meaningfully evaluate it.”
As the GAO concluded, “the RFQ did not include particularly detailed instructions or information relating to how firms were to prepare the technical capability portion of their quotations” and that “the record shows that the evaluators appear principally to have been concerned with the formatting and level of detail included in the Marquis quotation” and that the evaluators made “vague and conclusory findings.”
The GAO found that the sparse evaluation records failed to provide evidence of a meaningful evaluation process, noting that “other than these vague, conclusory statements, the evaluators failed to explain in any meaningful way the underlying rationale for their findings.” For example, the GAO noted that “the evaluators did not explain, or even provide examples of, what particular details were lacking from the Marquis quotation” and that “the evaluation materials also fail to address the requirements of either the technical capability subfactor […] or what elements of the statement of work–if any–the protester’s quotation failed to address.”
Further, the GAO noted that the evaluator’s records failed to criticize a competing quotation “for similar deficiencies in terms of its technical capability statement” and awarded points to that competing quotation for offering to have uniformed drivers while failing to score the complainant for a similar offer in its proposal. As the GAO concluded, “the record here does not support a conclusion that the agency performed a meaningful evaluation of the Marquis quotation.” The GAO therefore ordered a re-evaluation.
Similarly, in its January 2022 decision in Eccalon LLC, the GAO ordered a re-evaluation after finding that the evaluation records failed to demonstrate a reasonable basis for the contract award decision. The bid protest dealt with a Request for Quotations (RFQ) issued by the Department of Defense for support services for administering the Office of Small Business Programs. The complainant contended that the Department was unreasonable in its evaluation of quotations, which resulted in an unreasonable source selection decision. The GAO agreed, finding that the Department’s evaluation records failed to show how the Department assessed the complainant’s proposed approach to management and staffing. As the GAO stated, “the record does not support the agency’s decision to increase the risk rating for Eccalon’s quotation under the management and staffing approach factor”. In fact, the GAO found that “the record provides no evidence that the agency considered the matters the solicitation advised would be considered”. The GAO concluded that “without such evidence, we have no basis to find the agency’s decision reasonable here.” The GAO therefore sustained the protest and ordered a re-evaluation.
These cases serve as a useful reminder to all public institutions of the importance of maintaining proper evaluation records and how the failure to maintain those records can compromise the defensibility of their contract award decisions.
