The public sector bid evaluation process has been the subject of multiple successful bid protests in recent years. This discussion summarizes the ten governing principles that each evaluator should agree to comply with, in the form of a signed attestation, before participating in an evaluation process.
1. No Conflicts and Ongoing Disclosures
As a pre-condition to participating in an evaluation process, each evaluator should be required to sign an attestation confirming that he or she is free from any conflicts of interest (including any personal financial interest, whether direct or familial, in the outcome of the procurement process, or bias for or against any party competing for the contract award) that could adversely impact the fairness of the evaluation process. This attestation should also confirm that the evaluator is under an ongoing responsibility to disclose any actual or potential conflicts and clarify that an evaluator may need to recuse himself or herself from further participation in the evaluation process if a newly discovered conflict prejudices their ability to continue in the role of an evaluator.
2. Subject Matter Knowledge for Independent Evaluation
Each evaluator should also confirm that he or she has sufficient knowledge of the established evaluation criteria to independently perform the role of an evaluator without relying on other evaluators or third parties to assist in the application of those criteria to the supplier submissions. The evaluator should also acknowledge that if at any stage of the evaluation process he or she is unable to independently apply the evaluation criteria to those submissions, it is his or her responsibility to notify the evaluation moderator to determine whether the evaluator needs to be recused from scoring a specific evaluation category or removed from further participation in the evaluation process.
3. No Deviation from Evaluation Criteria or Process
Each evaluator should also acknowledge and agree that the role of the evaluator is to apply the pre-established evaluation criteria and procedures to the supplier submissions and that evaluators cannot change the pre-established evaluation criteria, apply additional evaluation criteria that are not included in the pre-established criteria, or deviate from the evaluation procedures established in the solicitation document that they are directed to follow by the evaluation moderator.
4. Maintaining Evaluation Records
Evaluators should also acknowledge that they are responsible for maintaining their own individual evaluation scores, and notes supporting their evaluation scoring, in the manner prescribed by the evaluation moderator, since all evaluation records are potentially subject to public release under access to information legislation or bid protests, and must therefore be clear, fair, and defensible.
5. Participation in the Evaluation
Evaluators should also agree to prioritize their roles as evaluators to meet the evaluation schedule and should acknowledge that this commitment to the evaluation process includes finishing their independent individual evaluation scoring, including supporting notes, in the format prescribed by the evaluation moderator, prior to each formal group evaluation meeting. Evaluators should also understand that while they will not be required to change their individual scores as a result of any group scoring discussions, if in exercising independent judgment, an evaluator determines that his or her individual scores require adjustment, that any such changes must be supported with updated scoring notes explaining the reason for that change.
6. Confidentiality of Evaluation Process
Evaluators should acknowledge that they are not permitted to discuss the evaluation process with other evaluators or third parties, except during formal moderated group evaluation meetings. More specifically, they should be instructed that, apart from formal moderated group evaluation meetings, they are not permitted to contact or communicate with any supplier competing for the contract award. If an evaluator believes that clarification is needed in respect of information contained in a supplier’s submission, he or she should notify the evaluation moderator. Each evaluator should also acknowledge that their confidentiality duties in relation to the evaluation process do not lapse at the end of the evaluation process but continue beyond the conclusion of that evaluation process.
7. Confidentiality of Role as Evaluator
To protect the evaluation process from interference or allegations of interference, evaluators should also agree to keep their role as an evaluator confidential (except for informing supervisors for work scheduling purposes) to prevent others from influencing or attempting to influence their scoring or otherwise influence the outcome of the evaluation process.
8. Duty to Report Interference
Evaluators should also be under a duty to immediately notify the evaluation moderator if anyone attempts to influence their scoring or otherwise attempts to interfere with their role as an evaluator.
9. Seeking Clarification from Moderator
Each evaluator should also acknowledge and agree that if he or she has any questions or concerns about the evaluation process, that those concerns should be raised directly with the evaluation moderator and should not be discussed with other evaluation group members, project team members, or any other third parties.
10. Standing as Evaluator
Each evaluator should expressly acknowledge and agree that the failure to adhere to the due process standards set out in their evaluator attestation could, among other things, result in his or her immediate removal from the evaluation process.
These governing principles, which are codified to address recent legal rulings against government evaluation processes across multiple jurisdictions, represent universal standards that should be formalized and applied to all evaluators during a government procurement process. By leveraging the learnings drawn from these past evaluation cases, government evaluators will be better positioned to avoid becoming the next government procurement case study.
