Government Contracting Database
Evaluation of Proposals
Evaluation of Proposals
The evaluation of a proposal in a negotiated procurements is inherently subjective and provides contracting officers, and source selection officials, with a great deal of latitude. It is this latitude, often referred to as “discretion,” that enables contracting officers to pick and choose among the offerors in order to assure that an award is not made to an offeror who fails to provide the right comfort level. Although the system is designed to allow the government to select the “best value,” there is a very real danger that the system can be manipulated to facilitate favoritism. If an offeror believes that the evaluation scheme, as spelled out in the solicitation, is unfair, a protest must be filed before the date for the receipt of offers. Of particular importance is the evaluation factor labeled as “Past Performance.” If an offeror believes that an evaluation has been conducted unfairly, the offeror should immediately request a debriefing (within three days) and, if the results of the debriefing are not convincing, a GAO protest must be filed within ten calendar days following the debriefing. In order to assure that the project stays while the protest is pending, the protest should be filed within one or two days following the debriefing. If the protest is filed in the United States Court of Federal Claims, the ten-day filing deadline does not apply.
It is a fundamental requirement that offerors be advised of the bases on which their proposals will be evaluated. Federal Acquisition Regulation (FAR) §§ 15.304(d), 15.305(a); Techsys Corp., B – 278904.3 , 98 – 2 CPD ¶ 64 (Comp. Gen. April 13, 1998) . In particular, contracting agencies are required by the Competition in Contracting Act of 1984 (CICA) to set forth in the solicitation, at a minimum, all significant evaluation factors that the agency expects to consider and their relative importance. 41 U.S.C.A. § 3306(b)(1); Matter of: Premiums & Specialties, Inc., B – 410247, 2014 CPD ¶ 340 ( Comp. Gen. Nov. 13, 2014) (citing H.J. Group Ventures, Inc., B – 246139 , 92 – 1 CPD ¶ 203 (Comp. Gen. Feb. 19, 1992 ) ).
In reviewing an agency’s evaluation of proposals and source selection decision, the GAO will examine the record to determine whether the agency acted reasonably and consistent with the stated evaluation factors as well as applicable statutes and regulations. PRC, Inc., B – 274698.2, B – 274698.3 , 97 – 1 CPD ¶ 115 (Comp. Gen. Jan. 23, 1997) . Implicit in the foregoing is that the evaluation must be documented in sufficient detail to show that it was reasonable and bears a rational relationship to the announced evaluation factors. FAR §§ 15.305(a), 15.308; ACS Gov’t Solutions Group, Inc., B – 282098 et al., 99 – 1 CPD ¶ 106 (Comp. Gen. June 29, 1999) . While the GAO will accord greater weight to the contemporaneous record in determining whether an evaluation was reasonable, post-protest explanations that are credible and consistent with the contemporaneous documentation will be considered in the GAO’s review. Jason Assocs. Corp., B – 278689 et al., 98 – 1 CPD ¶ 67 (Comp. Gen. Mar. 2, 1998); NWT, Inc.; PharmChem Labs, Inc., B – 280988, B – 280988.2, 98 – 2 CPD ¶ 158 (Comp. Gen. Dec. 17, 1998).
In reviewing an agency’s evaluation of proposals, the GAO will only question the agency’s evaluation where it lacks a reasonable basis or is inconsistent with the stated evaluation criteria for award. Suddath Van Lines, Inc.; The Pasha Group, B – 274285.2, B – 274285.3, 97 – 1 CPD ¶ 204 (Comp. Gen. May 19, 1997). The offeror has the obligation to submit an adequately written proposal, and its failure to fulfill that obligation does not render the evaluation unreasonable. Pacifica Servs., Inc., B – 280921, 98 – 2 CPD ¶ 137 (Comp. Gen. Dec. 7, 1998). Nor does an offeror’s mere disagreement with the agency render the evaluation unreasonable. McDonnell Douglas Corp., B – 259694.2, B – 259694.3, 95 – 2 CPD ¶ 51 (Comp. Gen. June 16, 1995).
In a negotiated procurement, where the solicitation does not provide for award on the basis of the lowest priced, technically acceptable proposal, an agency has the discretion to make an award to an offeror with a higher technical score and a higher price where it reasonably determines that the price premium is justified and the result is consistent with the evaluation criteria. Systems Integration & Dev., Inc., B – 271050, 96 – 1 CPD ¶ 273 (Comp. Gen. June 7, 1996). In making the tradeoff decision resulting in an award to an offeror with a higher technically rated, higher priced proposal, there is no requirement that the agency provides an exact quantification of the dollar value to the agency of the proposal’s technical superiority. Kay and Assocs., Inc., B – 258243.7, 96 – 1 CPD ¶ 266 (Comp. Gen. Sep. 7, 1995).
It is clear that agencies must evaluate proposals and make awards based on the criteria stated in the solicitation. This requirement is clear and rooted in the CICA and the FAR. 10 U.S.C. § 2305(b)(1) (1994) (“The head of an agency shall evaluate sealed bids and competitive proposals and make an award based solely on the factors specified in the solicitation.”); 48 C.F.R. § 15.305(a) (2000) (“An agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation.”). There are times when the government improperly evaluates offers by relying upon evaluation factors not disclosed in the solicitation. In order to show entitlement to relief on a claim that the agency used undisclosed evaluation factors, an offeror must prove that the government evaluated the proposals received on a significantly different basis than announced in the solicitation and that the offeror has been prejudiced as a result. Croman Corp. v. United States, 106 Fed. Cl. 198, 218 (2012), aff’d , 724 F.3d 1357 (Fed. Cir. 2013) (citing CACI Field Servs., Inc. v. United States, 13 Cl. Ct. 718, 728 (1987), aff’d , 854 F.2d 464 (Fed. Cir. 1988)).
The GAO has held that in reviewing protests against allegedly improper evaluations, our Office will examine the record to determine whether the agency’s determination was reasonable and consistent with the evaluation criteria listed in the solicitation, Worldtravelservice, 2001 CPD ¶ 68, B – 284155.3, (Comp. Gen. Mar. 26, 2001) (citing Hattal & Assocs., B – 243357, B – 243357.2, 91 – 2 CPD ¶ 90 (Comp. Gen. July 25, 1991)) , and an agency must document its judgments in sufficient detail to show that they are not arbitrary. Cmc & Maint., Inc., B – 293803.2, 2004 CPD ¶ 243 (Comp. Gen. Dec. 2, 2004) (citing U.S. Defense Sys., Inc., B – 245563, Jan. 17, 1992, 92 – 1 CPD ¶ 89). The amount and detail of documentation necessary to demonstrate that an agency’s judgments were reasoned and rational will vary from procurement to procurement, and there is no absolute requirement that evaluation records must include narrative explanations for every score assigned. See, Apex Marine Ship Mgmt. Co., LLC; Am. V – Ships Marine, Ltd. , B – 278276.25, 2000 CPD ¶ 164 (Comp. Gen. Sept. 25, 2000) ( citing Delta Dental Plan of Cal. v. Perry, 1996 WL 83881 (N.D. Cal. 1996) at *15; Champion – Alliance, Inc., B – 249504, Dec . 1, 1992, 92 – 2 CPD ¶ 386) (contemporaneous summary evaluation narrative and post-protest amplification sufficient documentation).
However, an agency has “great discretion in determining the scope of an evaluation factor.” Forestry Surveys and Data v. United States, 44 Fed. Cl. 493, 499 (1999) (citing John Cibinic Jr. & Ralph C. Nash Jr., Formation of Government Contracts, 830 (3rd ed. 1998) and discussing law developed by the General Accounting Office). An agency “can give more weight to one contract over another if it is more relevant to an offeror’s future performance on the solicited contract.” Id. This same reasoning is adopted by this court, provided the agency official does not act arbitrarily or capriciously. Moreover, “a solicitation need not identify each element to be considered by the agency during the course of the evaluation where such element is intrinsic to the stated factors[.]” Bean Stuyvesant. L.L.C. v. United States, 48 Fed. Cl. 303, 321 (2000) (quoting T & S Products, Inc. v. United States, 48 Fed. Cl. 100, lOS (2000)); see also In re Am. Dev. Corn., B – 251876, 93 – 2 C.P.D. ¶ 49 (Comp. Gen. July 12, 1993) (finding that the relevance of past contracts to the current solicitation could be considered in evaluating past performance although not listed as an evaluation criteria “since the RFP explicitly put offerors on notice that the comparative merit of the offerors’ past performance would be evaluated to assess the probability of successful accomplishment of the work at issue here, and relevance is logically encompassed by and related to the past performance factor”). Also, in In re AWD Techs., Inc., B – 250081, 93 – 1 C.P.D. ¶ 83 (Comp. Gen. Feb. 1, 1993), the Comptroller General found that the RFP’s “past project experience” evaluation factor, and “the importance assigned to it by the RFP, clearly put offerors on notice that the agency intended to consider factors — such as the degree of relevance and similarity in the projects — that would demonstrate the offeror’s understanding of and ability to perform the current requirement,” Id.
In order to prevail on a post-award protest of a negotiated procurement, a protester is required to demonstrate that the agency’s judgment is unreasonable and that it is not in accordance with the stated evaluation criteria in the solicitation. Engineering and Computation, Inc., B – 261658, 95 – 2 CPD ¶176 (Comp. Gen. Oct. 16, 1995). It must be recognized, moreover, that the GAO does not put itself in the place of the agency in order to evaluate proposals, but the GAO does require that an agency furnish adequate documentation to support its selection determination. Arco Management of Washington, D.C., Inc., B – 248653, , 92 – 2 CPD ¶173 (Comp. Gen. Sep. 11, 1992). A failure to document such judgments, moreover, in sufficient detail to show that they are not arbitrary, and that there was a reasonable basis for the selection decision, will cause the GAO to rule in favor of the contractor.
Updated: June 26, 2018