This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its December 2018 decision in Native Energy & Technology, Inc., the U.S. Government Accountability Office (GAO) ordered a re-evaluation due to unfair incumbent advantage, finding that the incumbent was scored for factors not included in its proposal based on the independent knowledge of the evaluators. The dispute dealt with a Department of Homeland Security Request for Proposals (RFP) for maintenance and repair services. The complainant, Native Energy and Technology, Inc. (NET) alleged that the agency unreasonably evaluated the past performance of the incumbent (EMCOR). More specifically, the evaluators brought their independent prior knowledge of the incumbent’s past performance into account and awarded points for factors that were not present in the incumbent’s proposal, which is a practice that is typically prohibited since evaluation rules tend to limit scoring to content contained within each proposal:
Evaluation of EMCOR’s Technical Proposal
NET argues that CBP unreasonably assigned five strengths to EMCOR’s proposal that were cited as discriminators in the award decision as the basis for selecting EMCOR’s higher-priced proposal for award. Specifically, NET argues that the features described in the strengths are nowhere to be found in EMCOR’s technical proposal. The agency contends that it was proper for the agency evaluators to rely on their own knowledge of the awardee’s performance of the incumbent contract to assume or infer that the awardee would perform the new contract in the same manner and thereby provide these features. For the reasons discussed below, we conclude that the record does not support the assignment of three of the five strengths cited as discriminators in favor of award to EMCOR.
Agencies must generally evaluate proposals based on material contained therein. See SeaArk Marine, Inc., B-248755, Sept. 21, 1992, 92-2 CPD ¶ 193 at 3; Primetec Inc., B-250018, Dec. 30, 1992, 93-1 CPD ¶ 19 at 5 n.2. We have recognized that an agency’s evaluation is not generally limited to the four corners of an offeror’s proposal, but may rely, in certain circumstances, upon other extrinsic information of which it is aware. Northrop Grumman Sys. Corp., B-406411, B-406411.2, May 25, 2012, 2012 CPD ¶ 164 at 11. For example, agency evaluators may reasonably rely on their matters, such as past performance, experience, or technical acceptability. See Del-Jen Int’l Corp., B-297960, May 5, 2006, 2006 CPD ¶ 81 at 7 (agency evaluators may reasonably consider personal knowledge of an offeror’s past performance); Nuclear Prod. Partners, LLC; Integrated Nuclear Prod. Solutions LLC, B-407948 et al., Apr. 29, 2013, 2013 CPD ¶ 112 at 20 (agency evaluators may reasonably consider personal knowledge of an offeror’s experience); Interfor US, Inc., B-410622, Dec. 30, 2014, 2015 CPD ¶ 19 at 6 (agency evaluators may reasonably consider personal knowledge regarding the capabilities of identified subcontractors to perform the work).
As the GAO warned, while evaluators may supplement their evaluations with personal prior knowledge of a supplier, they may not draw inferences or assumptions that are not supported by content in the supplier’s submission, and they may not provide incumbents with preferred scoring based on the assumption that the incumbent will inherently perform better than non-incumbents:
Although our Office has recognized that agencies may, in some circumstances, augment or supplement their evaluations with evaluators’ personal knowledge, our decisions have not found that an agency may assume or infer that an offeror will perform a contract using a specific technical approach that is not included in the offeror’s proposal and cite that approach or benefit as a discriminator in favor of award. Additionally, our Office has explained that agencies may not give incumbent contractors favorable evaluations due solely to their incumbency or the agency’s assumption that an incumbent contractor will inherently perform the contract in a superior manner to a non-incumbent offeror. See Consolidated Eng’g Servs., Inc., B-311313, June 10, 2008, 2008 CPD ¶ 146 at 11-12. With these principles in mind, we address three strengths cited as discriminators in the award decision in which we conclude that the agency improperly inferred or assumed were part of EMCOR’s technical approach based on the evaluators’ personal knowledge of the awardee’s performance of the incumbent contract.
The GAO determined that the evaluators made a series of assessments that unfairly discriminated against the complainant and advantaged the incumbent. These unfair assessments included the assumption that the incumbent’s senior project manager would continue to provide weekly preventative maintenance forecasts even though the incumbent’s proposal did not include those reports. The GAO also found that evaluators assumed that the incumbent’s software system would attach information regarding permits, certifications, test results, and warranties to work orders, even though the incumbent’s proposal failed to address those technical details:
Based on our review of the record, we agree with the protester that the awardee’s proposal does not specifically state that it will attach information to work orders regarding permits, certifications, test results, and warranties in the manner cited in the award decision. Thus, for the reasons discussed above, we conclude that the agency unreasonably assigned these strengths based on the agency’s presumption that the awardee would perform the contract in a manner similar to its performance of the incumbent contract–even though the awardee did not specifically state it would do so in its proposal.
In summary, the GAO concluded that the evaluators had improperly relied on their prior independent knowledge of the incumbent’s services to fill in the gaps in the incumbent’s proposal and justify their award decision. The GAO therefore ordered a re-evaluation.
