This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its August 2007 decision in Lockheed Martin Systems Integration-Owego; Sikorsky Aircraft Company, the U.S. Government Accountability Office (GAO) ordered the Department of the Air Force to seek new tenders for search and rescue helicopters after finding that the Department had made material changes to its evaluation scheme.
The GAO relied on a previously recognized principle that requires an agency to seek new bids if it makes material changes to its evaluation scheme:
It is fundamental that, where an agency materially changes the solicitation’s evaluation scheme, offerors must be given a reasonable opportunity to respond to the revised scheme; otherwise, the statutory requirement to notify offerors of the criteria upon which their offers will be evaluated is meaningless. Dept. Of Commerce – Request for Modification of Recommendation, B-283137.7, Feb. 14, 2000, 2000 CPD 27 at 3.
The GAO determined that the Department made material changes to the parts of the evaluation criteria that dealt with operations and support costs. It therefore directed the Department to seek revised bids:
We sustain the protests on the basis that, in light of the material change in the Air Force’s evaluation methodology, amendment 4 unreasonably limits proposal revisions to those related to O&S costs. Accordingly, we recommend that the Air Force permit offerors to revise both the cost/price and non-cost/price aspects of their proposals in response to the new evaluation scheme. We recognize that this represents a significant change in the Air Force’s intended conduct of this procurement as reflected in amendment 4, and that the result could delay the acquisition. Nonetheless, in view of the fact that the record shows that the Air Force’s change to its evaluation methodology could have affected the manner in which offerors prepared their proposals well beyond the O&S cost calculation, offerors should have the opportunity to revise their proposals in response.
In the event that the submission of revised bids resulted in a change in evaluation ranking, the GAO ordered the Department to terminate the originally awarded contract.
As this case illustrates, drafting accurate evaluation criteria is critical to the defensibility of the evaluation process. Changing those criteria part way through the evaluation process can adversely affect the integrity of the procurement process and can result in successful legal challenges.
