Project Proposal Contract Evaluation Criteria In Bid Protest Cases

What is The Purpose of  Bid Proposal Evaluation Criteria?

The purpose of the government’s proposal evaluation criteria is to give the agency’s evaluation team a way to determine which company has  submitted a  response to a solicitation that  best meets the Government’s stated needs. 

Your contract evaluation criteria also results in some analysis of whether the bid proves your ability to perform the contract successfully. Since taxpayer dollars actually pay for federal contracts, procurement rules require the agency to conduct some level of meaningful bid evaluations under FAR 15 (most cases). See difference between FAR part 12 and FAR part 15.

When the government solicits proposals from the public,  the RFP process requires it to give you some level of notice as to how your  bid will be evaluated. In turn, chances are that you have the information to write the best proposal by following the solicitation’s recommended proposal writing format. Since the Source Selection Evaluation Board’s decision is based on an Agency’s stated evaluation methods, the proposal evaluation criteria must clearly reflect the Government’s need and adequately inform bidders how the government intends to rate each proposal.

Rationale: An agency can obtain best value in negotiated acquisitions by using any one or a combination of source selection approaches. Depending on the types of contract acquisitions, the relative importance of cost or price may vary. For example, in acquisitions when the requirement is clearly defined and the risk of unsuccessful contract performance is  low, cost or price may play a dominant role in source selection. The less definitive the requirement, the more development work required, or the greater the performance risk, the more technical or past performance considerations may play a dominant role in source selection. Hence, the RFP scoring criteria.

Factors and Sub-factors in RFP Proposal Evaluations

Proposal evaluation criteria in RFP’s usually consist of the factors and sub-factors that reflect the important areas of consideration.  Vendors must read this information carefully and respond accordingly.

• In negotiated bids under FAR 15, the government should assess the similarities and differences and strengths and weaknesses of each proposal after first comparing to the solicitation’s requirements.
• Agencies must also document their evaluation decisions

When you find a  problem with the solicitation’s  expressed contents, you should promptly address your concern with the Agency. The best way for you to address the concern is to file a pre-award bid protest.

Understanding the rules for challenging the Agency’s proposal evaluation criteria can often cause problems for government contractors and vendors that file pro se. Many companies wait until after the award, to later challenge the evaluation criteria.

• If you wait until after the government’s source selection is complete to challenge the proposal evaluation criteria, then you may run the risk of GAO or COFC ruling that your protest as untimely.

Vendor Evaluation Criteria and CICA Requirements

The Competition in Contracting Act of 1984 (CICA) requires that solicitations “at a minimum” include “a statement of:

1. All significant factors and significant subfactors which the head of the agency reasonably expects to consider . . . ;
2. The relative importance assigned to each of those factors and subfactors ….” 

However, courts have also stated that although agencies are not required to identify each and every element of vendor proposal evaluation criteria encompassed within the solicitation ‟s evaluation scheme, unstated evaluation considerations must reasonably be subsumed within the stated considerations,” citing GAO in the protest of Mnemonics, Inc., B-290961, Oct. 28, 2002, 2003 CPD ¶ 39 at 6.

Example

An example of a stated evaluation criteria for proposals that may qualify for a GAO bid protest could be one that states that the agency will “award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered.”  

Then the evaluation criteria list the six technical and two price evaluation factors that will be considered in determining the “most advantageous” proposal; and lists the considerations–to “ensure that two sources are available and to make sure the continuous availability of reliable sources of supplies.”

• The government’s evaluation criteria states that the source selection board may exclude you may be selected for award for one zone from award for the other zone.
• A proposal evaluation criteria problem could occur if the solicitation is silent as to the basis for determining which zone you will be awarded where your proposal is most advantageous for both zones.
• This tiny aspect of the vendor evaluation criteria is important, as stated in the solicitation because such an omission could be  especially significant if the estimated value of one zone is nearly five times greater than the value of the other.
• Failure to advise you of the factors the agency will apply is inconsistent with the requirement in Competition in Contract Act which requires agencies to identify the basis upon which your proposal will be evaluated.

Project Proposal Source Selection Criteria – COFC Bid Protest

The Court of Federal Claims has often stated that if the government uses evaluation selection criteria for  projects proposals listed in the government’s Source Selection Evaluation Plan instead of that stated in the RFP, and the Plan’s proposal evaluation factors are much different from the RFP evaluation factors, then you can win a bid protest on those grounds.

If you are contemplating filing a new bid protest at the Court of Federal Claims due to an adverse GAO bid protest decision, you should also be aware that the role of that Court is not to second-guess GAO‟s decisions about vendor evaluation criteria. Instead; the Court only determines whether GAO‟s decision was rational.

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For addition help in a bid protest that challenges the vendor contract evaluation criteria, call our bid protest lawyers  at 1-866-601-5518.