This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its February 2005 decision in Pearson Educational Measurement v. Department of Education, the Florida Division of Administrative Hearings rejected a bid protest after finding that the tendering irregularities in the challenged evaluation had no impact on the ultimate contract award. The case dealt with a Request for Proposals (RFP) for the administration of Florida’s Comprehensive Assessment Test. As the Court summarized, under the RFP rules, post-bid clarifications were only permitted during proponent presentations:
Because clarifications are permissible during the vendor presentations, the RFP expressly states that such clarifications may affect scoring of the proposals. By contrast, nothing in the RFP authorizes the evaluators to seek or consider in scoring the proposals any vendor clarification made in any other form or at any other point, whether before or after the oral presentations. In fact, considering any information received from the vendors outside of the oral presentations would be inconsistent with RFP Section 5.3, which restricts communications by bidders with Respondent’s staff. In short, to the extent a clarification of a proposal was needed, under the RFP, it should have been provided orally during the vendor presentations.
However, the Court found that the Department of Education sought unauthorized follow-up clarifications after the proponent presentation stage:
Because the evaluators had lingering questions on staffing, Respondent made a decision to send out questions to two of the three vendors following completion of the oral presentations. No scoring was done on any of the proposals prior to the time Petitioner’s and CTB’s responses were presented to the evaluators. At least some of the evaluation committee members felt that the staffing information was critical. The questions were not based on the presentations by the vendors, but were based on the evaluation committee members’ concerns that had not been resolved by the oral presentations. The questions reflected areas that the evaluators were not able to understand from the initial proposals submitted.
The Court determined that the collection of out-of-scope clarifications had no impact on the ultimate evaluation decision and constituted a minor procedural irregularity:
Testimony at hearing makes clear that the evaluators considered the supplemental material submitted by CTB. It is impossible to say how much significance this submission was accorded. Indications are, however, that it may have been given considerable weight. It is reasonable to believe that CTB’s scores would have been quite different if one or more evaluators believed that CTB had only assigned seven full-time employees to the FCAT administration project. However, assuming these indications are correct, a re-scoring of Stage II or Stage III evaluations would not have changed the ultimate outcome…[C]TB’s post-presentation submission actually reflected only minor changes in the number of full-time personnel dedicated to the FCAT administration project…[R]espondent’s request for supplemental information from CTB and Petitioner, and CTB’s response to it, do not rise to the level of a breach of the statutory standard of conduct outlined in Subsection 120.57(3)(f), Florida Statutes (2004). The request (and subsequent delivery of the information) is not contrary to the prohibition in Subsection 120.57(3)(f), Florida Statutes (2004), relating to amendments or supplements after the opening of proposals because CTB did not seek to offer it on its own, nor did it change its staffing plan after the presentations. In addition, a preponderance of the evidence does not demonstrate that the supplemental information renders Respondent’s proposed agency action clearly erroneous, contrary to competition, arbitrary, or capricious.
The Court also found irregularities in how the evaluators scored the alternative proposal content contained in the various proposals:
During the Stage II and III evaluation process, a committee member raised a question regarding assigning points for alternative proposals. Because the RFP did not provide a mechanism for evaluating the alternatives, an internal decision was made by Respondent not to consider the alternatives at all in connection with scoring the proposals. The members of the evaluation team were told to disregard the references to alternative proposals submitted by each of the bidders. There was no provision in the RFP that was relied upon in making that determination.
The evaluators were given no guidance as to which provisions of the various proposals should not be considered. This led to inconsistencies in what was treated as an alternative and not scored, versus what was treated as part of the base proposal and scored. It is clear that the decision not to consider alternatives resulted in confusion and inconsistency in the evaluation process…[W]hile it is impossible to quantify the exact impact of the decision not to consider alternatives, it is clear that Petitioner’s bid received a disproportionate negative impact because many of its important enhancements, which were being offered to Respondent at no cost were listed as “alternatives” and never factored into the evaluation process. There were several alternatives proposed by Petitioner that would have been enhancements to the current program and would have been made available at no cost to Respondent. Thus, Petitioner’s score was artificially influenced in a negative way. By contrast, the evidence is clear that CTB and Harcourt, in many instances presented different ways to accomplish tasks without specifically utilizing the term “alternative” or “option” and such matters were factored into the evaluation.
Even so, while the Court determined that the irregularities in the scoring of the alternative content breached the RFP rules, as with the collection of post-interview clarifications, it also determined that those irregularities had no material impact on the outcome of the evaluation process:
Respondent’s instruction to the evaluators not to consider alternatives proposed by the vendors is directly contrary to the terms of the RFP, as the evaluation committee’s co-facilitator acknowledged at hearing. Moreover, the evaluators were given no guidance as to which provisions of the various proposals should not be considered. This led to inconsistencies in what was treated as an alternative and not scored, versus what was treated as part of the base proposal and scored.
It is impossible to tell how Respondent’s improper instruction to evaluators not to consider alternatives affected
the scoring of the proposals, although the evidence shows the instruction probably had a disproportionate negative impact on Petitioner, as its “alternatives” were easy to identify and disregard. However, Section 1.3.2 of the RFP states that “alternate proposals for completing specific work tasks will be considered . . . and bidders must be aware that the Department is not obligated to accept the alternative.” Failure of evaluators to consider information required by the RFP is not clearly erroneous or arbitrary. The evidence does not support the conclusion that CTB’s score or the other bidders’ scores should be changed because of the disparity in the evaluation process. The preponderance of the evidence demonstrates that Respondent’s instruction to evaluators not to consider alternatives does not render the proposed agency action clearly erroneous, contrary to competition, arbitrary, or capricious.
The Court therefore upheld the contract award and rejected the complainant’s protest.
As this case illustrates, evaluation irregularities can be subject to legal challenges; however, to be successful in those challenges, complainants typically need to establish a connection between the evaluation irregularity and the final evaluation decision. Where there is no causal connection between the irregularity and the ultimate outcome, a remedy will not typically be granted in such a bid protest. That being said, following a clear and consistent evaluation process remains a preferable alternative to defending evaluation irregularities after the fact, in the hope that those irregularities are not fatal to the integrity of the resulting contract award decision.
