When agencies use their source selection process for evaluation and best value trade-off of technical proposals, the government contract law only allows for reasonable  technical proposal and best Best Value Source Selection Process & Technical Evaluation of Proposalsvalue trade-off decisions.

This occurs during the final stages of a negotiated procurement by comparing competing proposal to each other.

When the Agency receives initial proposals, it will examine each proposal to the actual solicitation requirements.  Then after the Agency establishes a competitive rangee, the final bids are typically compared to each other.

  • In the best value trade off process, the agency  bid selection team should compare each proposal against assigned weaknesses and strengths.
  • The agency also looks at your proposed price to see if your technical evaluation supports your price.
  • Evaluations compare proposals by the price and non-price factors as stated in the solicitation.

Seek Out Potential Agency Best Value Trade off Evaluation Problems

The problems with many agency source selection evaluation processes tend to fall within the following:

  • Failure to provide strengths in proposals that offer more than the government’s minimum requirements;
  • Providing inconsistent evaluations where the Agency credits your competition but fails to credit your proposal.
  • Relaxing the source selection criteria from what the solicitation calls for; and
  • Not thoroughly evaluating your technical proposal to see if you proposed approach can get the result the Agency seeks.

One of the common problems with contracting agencies in bid protest litigation is that they tend to believe that the record as they document them is conclusive. This frankly is not so. What matters is whether, given the facts in the record, the actions and documented justifications in the source selection process were reasonable and rationale. 

Everyone understands that the contracting agencies have substantial power and discretion. However, our system of government is regulated by checks and balances. Any protestor hoping to win a GAO bid protest must attack the reasonableness and rationality of whatever the Agency puts in the source selection documents.

Overcoming Agency Source Selection Evaluation Trade-Off Arguments in a Bid Protest

When it comes to GAO bid protest source selection evaluations of technical proposals, there are cases where government contractors do in fact overcome the Agency arguments. An example can be found in the GAO protest of Sayres & Assocs. Corp., B-408252, .2 (Aug. 1, 2013), B-408253; B-408253.2 .

The GAO protest was sustained because the agency misevaluated clearly presented information in the protester’s government proposal, assigned a weakness inconsistent with the solicitation, and conducted a flawed cost/technical trade-off.

The bid protest was filed against the Department of the Navy, Space and Naval Warfare Systems Command (SPAWAR), under task order request for proposals (TORP) No. N00024-12-R-3240 for program management, business management, and executive level support services.

GAO Analysis With Best Value Source Selection Process and Evaluation of Technical Proposals and Best Value Trade Off Decisions 

In Sayres, when challenging the  agency’s best value source selection process and its technical trade-off, the protestor argued that the agency’s evaluation of its technical proposal and best value trade off decision were unreasonable. It asserted that the Navy improperly assigned its proposal a significant weakness under the management approach technical proposal evaluation factor.

  • The protestor attacked the agency’s assignment of a significant weakness related to its presentation of two personnel allocation tables that the agency concluded were contradictory.
  • The protestor’s also challenged the agency’s assignment of a weakness for other aspects of its technical proposal. Lastly, the protestor challenged the agency’s best value trade off process and decision.

GAO agreed with the protestor by ruling that the Navy erred in its bid selection evaluation of Sayres’ technical proposal under the management approach factor and that the Navy’s best value proposal  trade off decision–premised in part on errors in the management approach evaluation–was flawed.

Note: GAO protest regulations and rulings show that the source selection process and evaluation of an offeror’s government proposal is a matter within the agency’s discretion.  When reviewing a bid protest of an agency’s evaluation of proposals, GAO will look at the record to decide whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. 

  • As an actual or potential bidder, it is important to understand that GAO will not substitute its judgment for that of the agency. Instead, it will only sustain a protest where the agency’s conclusions are inconsistent with the solicitation’s evaluation criteria, undocumented or not reasonably based.

Protestor Wins: In this case, GAO agreed with the protestor that the agency failed to reasonably review tables inserted in its technical evaluation proposal. The GAO further agreed with the protestor that the agency failed to conduct a reasonable source selection evaluation of its technical proposal under the management approach factor and that a reasonable review of proposal tables and that the tables in the proposal were not contradictory.

Proper Agency Documentation Required For Source Selection Evaluations: Where the Government contracting agency states that it will conduct a best value source selection evaluation of technical proposals, a cost/technical trade off and best value trade off process requires source selection officials to have adequate documentation.

  • Agencies may not always adequately document their best value and trade off decisions.
  • Even if there is documentation, such documentation must be reasonable.

Agencies Allowed Great Discretion During Bid Selection and Source Selection Process and Best Value Trade off Decisions

The reality is that GAO allows the agency significant discretion when deciding “what is adequate documentation.” There are a substantial amount of cases where the Government just makes general statements in the record justifying bid selection. Oftentimes, GAO may then allow the Agency to explain themselves at a hearing despite the lack of documentation in a contemporaneous record. See information on lowest price technically acceptable bids.

 Best Value Trade off Process and Technical Evaluation: Comparison of Proposals: When conducting a best value trade-off in negotiated procurements, the source selection evaluation panel should conduct a substantive analysis or consideration of whether one proposal is superior to another. Substantive arguably means reasoned and detailed.

  • Whether you are the intervenor or filing a protest, you should be aware of the requirements.  
  • The Court of Federal Claims has also ruled on the nature and depth of what makes up sufficient best value trade-off analysis.

A best value trade off source selection process allows “the Government to consider award to other than the lowest priced offeror or other than the highest technically rated offeror.” FAR 15.101–1(a).  

In a best-value trade off procurement, the agency may decide to select a lower-technically-rated proposal–even if the solicitation emphasizes the importance of technical merit–if it decides that the higher price of a higher-technically-rated proposal is not justified.

When a Government contracting agency determines whether your proposal represents the best value, the source selection process required the agency to compare the relative costs and benefits of the competing proposals, including both price and non-price factors. See information on price reasonableness.

Bad Technical Evaluations Lead to Bad Best Value Trade off 

When assessing a bid protest based on the Agency’s source selection process and technical evaluation of proposals proposals, Government contracting agencies are required to conduct a cost/technical best value trade off analysis when a  higher-rated technical proposal was more advantageous to the government than your cost.

  • In Sayres,  GAO ruled that the flaw in the best value proposal evaluation trade-off process was a direct result of the errors in the underlying technical evaluation. This had the greatest  prejudicial impact on the final selection.
  • GAO recommended that the Navy reevaluate the protester’s proposal in a manner that is reasonable and consistent with the TORP’s evaluation criteria. It also suggested that upon completion of the source selection re-evaluation, the agency should perform and document a new best value trade off analysis with the rationale for any trade off made.

Take Away

When you engage in government proposal writing, although charts can be beneficial, never assume that the agency will interpret them correctly. If you have page space, then explain the chart so that there is no room for interpretation. This should flow with the narrative in write a technical proposal. Remember that a best value trade-off only arise from what you write in the proposal. Having a bid protest attorney can be valuable because it helps you to understand these complex rules

When it comes to making the decision to file a bid protest that is based the upon evaluation of technical proposals and best value trade off decisions, you must also consider whether you have an argument grounded in fact or law to show that the Agency acted unreasonably.

For immediate help challenging an Agency’s best value source selection process and best value trade off decision, call 1-866-601-5518 for Immediate Help. 

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