Post-Award Challenges to Flawed Best-Value Tradeoff Analyses

August 30, 2024 Sareesh Rawat, Esq.

Under best-value evaluation schemes, government evaluators are typically required to qualitatively assess the offerors’ proposals based on the stated evaluation criteria in the solicitation to determine which proposal represents the best value to the government. If the evaluation scheme provides that the procuring agency would evaluate the “extent” to which a proposal meets a particular requirement, offerors may reasonably expect that their proposal exceeding the government’s stated requirements would be evaluated more favorably than a competing proposal that meets the minimum requirements. In such best-value procurements, the agency must usually identify and assess potential discriminators between the offerors’ proposals in addition to evaluating whether the proposals are acceptable under the stated criteria in the RFP. Disappointed offerors may challenge a procuring agency’s best-value determination as flawed when one or more underlying evaluations upon which that tradeoff analysis is based are unreasonable.

In B-421871.3; B-421871.4, the Government Accountability Office (GAO) sustained a bid protest implicating these best-value evaluation principles in a Department of Homeland Security (DHS) procurement for financial and program management support services. The underlying task order (TO) was issued in support of the Countering Weapons of Mass Destruction (CWMD) Office under DHS’ Program Management Administrative, Operation and Technical Services II (PACTS II) indefinite-delivery, indefinite quantity (IDIQ) contract. The request for proposal (RFP) contemplated a time-and-materials (T&M) award to be issued on a best-value basis upon the consideration of four factors. The “technical capability and approach” was the most important non-price factor followed by “management approach” and “past performance” factors in decreasing order of importance. The non-price factors, when combined, were considered more important than the “price” factor. Furthermore, the RFP’s evaluation criteria outlined an adjectival confidence ratings framework for the evaluation of non-price factors, with “High Confidence” being the highest possible adjectival rating. The RFP also provided “positive” and “negative” evaluation elements that were assigned when an offeror’s proposal demonstrated an understanding (or lack thereof) of RFP requirements. Evaluators were also required to consider the soundness of the offerors’ proposed approaches to accomplish the relevant objectives.

Following the award decision, the protestor challenged the agency’s evaluation of the technical proposals as unreasonable. The protest alleged that the agency conducted a flawed best-value tradeoff analysis. In the post-award protest, the protestor alleged that the agency unreasonably assigned a “positive” to the awardee based on a misunderstanding of the awardee’s proposal. The protestor also claimed that the agency’s best-value analysis failed to recognize “positives” in the protestor’s staffing plan, which offered more senior accountants who were certified public accountants (CPAs). Finally, the incumbent-protestor alleged that the agency unreasonably ignored the clear benefits offered by its proposed transition plan. Due to these alleged errors in the underlying evaluations, the protestor challenged the agency’s overall best-value determination as flawed.

Unreasonable Assignment of “Positive” to the Awardee’s Proposal

Upon reviewing the agency’s evaluation of the awardee’s proposal, the protestor raised supplemental protest arguments that the agency misunderstood the awardee’s use of the audit command language (ACL) tool in its proposed solution. The agency assigned the awardee a “positive” for its proposed use of the ACL tool to support enterprise risk management activities. However, in its proposal, the awardee had actually proposed the ACL tool to facilitate enterprise resource management activities. The mix-up was attributable to enterprise risk management and enterprise resource management activities sharing the same acronym. Therefore, the protestor challenged the agency’s decision to assign a positive to the awardee for its proposed use of the ACL tool. The agency failed to address this supplemental protest argument substantively. Therefore, the GAO concluded that the agency effectively conceded that the protestor’s arguments were meritorious and that it was unreasonable for the agency to assign a “positive” to the awardee’s proposal for its use of the ACL tool.

Unrecognized “Positives” in the Protestor’s Staffing Plan

The protestor alleged that the agency’s best-value tradeoff analysis failed to consider that under the “management approach and staffing plan” factor, the protestor proposed two senior accountants who were CPAs when only one of the awardee’s proposed senior accountants was a CPA. Notably, the RFP had advised offerors that a CPA was “preferred” for these positions. However, when evaluating the staffing plans, the agency merely noted both the awardee’s and the protestor’s proposals as having “met the requirement” and assigned both proposals a “High Confidence” rating under the relevant factor.

In agreeing with the protestor, the GAO explained that the RFP’s evaluation criteria required a qualitative assessment of the proposed key employee’s education, qualifications, and experience. Additionally, the RFP clearly preferred senior accountants who were CPAs. However, the record contained no evidence of the source selection authority conducting such a qualitative assessment. Instead, the agency had substituted the qualitative assessment with a simple pass/fail determination that the awardee and the protestor both met the solicitation requirements. Therefore, the GAO found merit in the protestor’s argument that the agency’s best-value tradeoff analysis failed to consider whether its proposal should have been evaluated more favorably for proposing two CPAs for the senior accountant roles.

Unrecognized “Positives” in the Protestor’s Transition Plan

Finally, the protestor alleged that the agency’s best-value evaluation unreasonably ignored the clear benefits of its transition plan, in which the incumbent-protestor committed to having all its proposed staff ready to perform on day 1. In comparison, the awardee had only proposed to have its key personnel and transition team in place by day 30 and have the contract fully staffed by day 60. The agency’s evaluation report again merely indicated that both proposals “met the requirements” for the transition plan criteria and assigned both the protestor and the awardee a “High Confidence” rating in the technical capability and approach factor, which contained the transition plan. Therefore, the GAO also found merit in the protestor’s arguments that the procuring agency failed to qualitatively assess the offerors’ proposed transition plans.

When conducting best-value tradeoff evaluations, the procuring agency must look behind adjectival ratings and consider the substance of the proposals. Such an evaluation necessarily involves conducting a qualitative assessment of the underlying differences between competing proposals. Additionally, whenever a solicitation indicates that the source selection authority will evaluate the extent to which an offeror meets a requirement – exceeding the stated minimum requirements should typically result in a more favorable evaluation. Contractors should be aware that the government’s failure to assign a more favorable evaluation under such circumstances can be protested. Similarly, the source selection authority’s decision to evaluate a tradeoff factor as “pass or fail” can be protested as it effectively gives no weight to that factor in the tradeoff decision while simultaneously increasing the importance of the remaining factors. Therefore, the government’s failure to conduct a well-documented qualitative assessment in best-value tradeoff procurements may be protested by disappointed offerors, especially when the overall adjectival ratings do not reflect the underlying merits of their proposed solution.

This Bid Protests Insight provides a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.

Related Insights

Protesting Award Decisions Due to Agency Misevaluations

December 18, 2023 Sareesh Rawat, Esq.

Unsuccessful contractors may challenge contract award decisions on the grounds that the agency misevaluated proposals, which prejudiced the protestor. Experienced contractors understand that in post-award protest cases, the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) do not replace their opinions or the protester's viewpoints with the agency's evaluation. Instead of reevaluating offerors’ proposals, the agency record is examined to determine whether the source selection decision was reasonable and whether the agency’s evaluation was consistent with the solicitation’s evaluation criteria. That is because the evaluation of proposals is considered squarely within the agency’s discretion. Thus, even if there are two or more reasonable subjective interpretations or positions on technical evaluation details, the agency’s evaluation position will prevail as long as it is reasonable and consistent with the stated criteria.

It should be noted, however, that the agency’s evaluation is only afforded discretion so long as the award is reasonable and consistent with the terms of the solicitation. In B-421567; B-421567.2, a 2023 protest decision, the GAO sustained a protest challenging the agency evaluation of the awardee’s proposal after finding that the agency failed to evaluate technical proposals consistent with the solicitation’s evaluation criteria. In that post-award protest involving the award of a task order under the Army’s ITES-3S IDIQ contract on a best-value basis, GAO found that it was unreasonable for the agency to evaluate the awardee’s technical proposal as meeting the requirements when the awardee’s IDIQ level labor categories did not fully meet the task order solicitation’s position requirements. In its decision, the GAO additionally found that the protestor was prejudiced by the Agency’s failure to enforce the solicitation requirements when evaluating the awardee’s proposal because had the protestor known that the agency would accept labor categories that did not fully meet the requirements of the task order, the protestor could have proposed less qualified labor categories, thus achieving cost-savings and lowering its total evaluated price in the process.

Filing Pre-Award Protests Challenging Flawed Evaluation Methodologies

March 31, 2024 Sareesh Rawat, Esq.

Prospective contractors may raise pre-award protests challenging solicitations that contain flawed evaluation methodologies. While the government has discretion in selecting the appropriate evaluation methodologies for fulfilling its procurement needs, the stated evaluation scheme must generally provide a meaningful basis for differentiating between offerors, while supporting a reasonable award decision. Pre-award protests that challenge the government’s evaluation methodologies are distinct from post-award protests filed due to flawed agency evaluations or disparate treatment of offerors. Such pre-award challenges are raised in response to the agency's planned approach to evaluate one or more solicitation factors, rather than a failure to adequately evaluate the proposals.

While it is within the agency’s discretion to select an appropriate method to assess offeror pricing, the agency may not use an evaluation method that produces a flawed or misleading result. In B-409872.2, the GAO sustained a pre-award bid protest because it found that the solicitation’s price evaluation methodology could produce misleading evaluation results when analyzing the competitiveness of price proposals. The solicitation issued by the Defense Commissary Agency (DeCA), contemplated an indefinite-delivery requirements contract for fresh fruit and vegetables for military commissary stores in South Korea, Japan, and Guam. The commissary stores provided groceries and household items to members of the military and other authorized patrons. The incumbent contractor responsible for fulfilling the fresh fruit and vegetables requirement for the commissary store protested the solicitation terms for allegedly containing a flawed pricing evaluation methodology.

Protesting Insufficient Documentation of Evaluation Decisions

August 18, 2024 Sareesh Rawat, Esq.

Government agencies must document their evaluations decisions in sufficient detail to provide a reasonable basis to support an award. When a protestor challenges the reasonableness of the government’s evaluation in the form of a bid protest, adjudicative forums such as the Government Accountability Office (GAO) first question whether the government’s evaluation is adequately documented before determining whether the evaluation is consistent with the solicitation’s stated evaluation criteria. Therefore, when an agency fails to document its evaluation or retain evaluation materials, it bears the risk that there may not be sufficiently detailed supporting rationale in the record for the adjudicative forum to conclude that the government had a reasonable basis for the award decision. In such cases, the GAO will typically sustain the protest challenging the government’s evaluation decision and recommend that the agency reevaluate the proposals and sufficiently document its rationale. The adjudicative forum will also generally recommend that the procuring agency terminate the awarded contract for the government's convenience if as a result of the reevaluation, an offeror other than the awardee is in line for the award.

Countering Post-hoc Rationalizations in Government Contracts Disputes

August 26, 2024 Sareesh Rawat, Esq.

When reviewing an agency’s procurement actions, adjudicative forums such as the Government Accountability Office (GAO) typically consider various materials and information in the record. Such materials may include arguments the agency and contractor raised during litigation, explanations of decisions and events advanced during the procurement cycle, and any hearing testimony. When reviewing evidence to determine the reasonableness of the government’s procurement actions, the adjudicative forum will generally assign greater weight to contemporaneous materials than post hoc arguments or analyses. This is because the judgments made in the heat of an adversarial process do not always represent the fair and considered judgment of the agency. Therefore, while adjudicative forums will consider explanations provided by agency counsel that merely fill in previously unrecorded details, post hoc rationalizations are typically deemed less persuasive. For instance, in resolving bid protests, the GAO has explained that it accords greater weight to contemporaneous materials, which are far more indicative of whether the agency conducted a rational evaluation and source selection process.

In B-422162; B-422162.2; B-422162.3, a bid protest decision issued on February 1, 2024, the GAO applied this principle in sustaining the protestor’s challenge to the government’s cost realism evaluation. The United States Army Corps of Engineers (USACE) awarded the contract at issue for environmental remediation services at the Durham Manufacturing Company superfund site in Connecticut. The cost-plus-fixed-fee contract was awarded on a best-value tradeoff basis where the non-price factors, when combined, were approximately equal to cost. Notably, the solicitation provided that the government would evaluate proposed costs for realism and, if needed, adjust an offeror’s unrealistically low proposed costs to a most probable cost (MPC) calculated solely for evaluation purposes. Among other contentions, the protestor alleged that USACE made unreasonable upward adjustments to the proposed rates for two labor positions. Specifically, USACE evaluators found the protestors’ rates for the quality control (QC) manager and site safety and health officer (SSHO) position to be unrealistically low when compared to the independent government estimate (IGE). However, instead of upwardly adjusting the protestor’s QC manager and SSHO rates to the IGE rates for these positions, the evaluators adjusted these rates to the protestor’s proposed rate for the superintendent position. The evaluators also failed to contemporaneously record their rationale for this adjustment.

Post-Award Challenges to Flawed Best-Value Tradeoff Analyses

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