Government Contracts Monitor

When It Comes to Evaluations, Agencies Have to Do What They Say They’re Going to Do – And Be Able to Prove It

November 19, 2013

By: Eric Whytsell

The recently announced decision in Trailboss Enterprises, Inc., B-407093 (Comp. Gen. Nov. 6, 2012) presents a classic example of agency activity that usually leads the Government Accountability Office (GAO) to sustain a protest: the failure to conduct an evaluation in accordance with the solicitation.

Trailboss involved a Request for Proposals (RFP) to provide aerial delivery services to a number of DoD bases throughout the United States. According to the RFP, award was to be made on a best-value basis considering four evaluation factors: past performance, staffing, implementation, and price, with the non-price factors weighted equally and significantly more important than price when combined.

In addition to explaining that a confidence rating (substantial, satisfactory, limited, no, unknown) would be assigned based on each offeror’s recent/relevant past performance, the RFP provided that, “This evaluation provides an assessment of the offeror’s capability to technically satisfy the Government’s requirements. The ratings focus on the offerors’ proposed strengths, weaknesses, and/or deficiencies.” The RFP went on to make clear that the proposals were to be assigned color ratings under the staffing and implementation factors and also evaluated for risks (low, moderate or high) associated with the offeror’s proposed approach to each, including weaknesses.

Unfortunately, the contemplated best value tradeoff did not occur.

Instead, after the three offerors’ final proposal revisions were rated, the SSEB assigned the awardee, CAV International, Inc. (CAV), a rating of Green/Acceptable with Low Risk for staffing and implementation and “Unknown Confidence” for past performance. Trailboss received the same ratings for on the staffing and implementation factors and was given a “Substantial Confidence” rating for past performance, but its price was $1.6 million (11%) more than CAV’s.

The SSEB then recommended award to CAV, finding that Trailboss’ superior past performance was not worth the “considerabl[e]” price premium. The Source Selection Authority (SSA) agreed. However, neither the SSEB nor the SSA looked beyond the difference in past performance when making that determination. According to Trailboss, both essentially treated the other factors as equal and improperly focused on technical acceptability without properly considering differences between CAV and Trailboss on those factors -- despite the RFP’s clear dictates. The agency argued that there was no basis to distinguish between the two with respect to staffing and implementation because neither was awarded any strengths on those factors.

The GAO rejected the agency’s argument, citing the lack of evidence that either the SSEB or the SSA meaningfully considered the technical or qualitative distinctions between the competing proposals under the technical evaluation factors. It also noted that the contemporaneous evidence reveals a focus on technical acceptability rather than a consideration of relative technical merit. The GAO then summarized the applicable rule succinctly: “Where the agency undertakes a cost/technical tradeoff, adequate documentation requires more than just generalized statements or proposal equivalency where the record evidences the existence of relative differences in proposals. . . . Source selection decisions that are devoid of substantive analysis or consideration of whether one proposal is superior to another are insufficient to demonstrate the reasonableness of the agency’s decision.”

Because the record in this case lacked any evidence that the SSEB and SSA considered the proposals’ relative merits, the GAO sustained this protest and recommended a new evaluation consistent with its decision, followed by discussions if needed and a new source selection decision. It also recommended that the protester be reimbursed its protest costs.

It is axiomatic that agencies must follow the evaluation criteria and procedures set forth in the RFP. This case serves as a reminder that complying with that rule in the context of a best value procurement may entail some reading between the lines of the RFP – and certainly requires a meaningful comparison of the relative merits of competing proposals.

Eric Whytsell is the attorney responsible for the content of this article.

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