The gist of any challenge in a bid protest is to show how the source selection evaluation members failed to assess a critical component of the stated evaluation criteria.
The important aspect of the source selection criterion for best value trade off in bid protests is that the agency must be able to justify its trade-off decisions, if any, AND have adequate documentation.
The problem in most bid protests is to get the agency files to verify its documentation. To be able to get to the best value trade off documents in a bid protest, you first have to make specific allegations in the bid protest letter itself.
- This can be tough because no protestor ever knows the exact contents of the agency records at the beginning of the bid protest process.
- You may want to make specific points about what you believe the agency failed to consider about your specific proposal, and that if the agency’s best value tradeoff and source selection was done according to the stated solicitation terms.
Lack of Agency Documentation for Selecting Best Value Trade Off Source Selection Criteria
In determining whether a particular agency’s source selection criterion for best value trade off decision is rational, the GAO typically examines the record to decide whether the judgment was reasonable and in accordance with the evaluation criteria listed in the solicitation. If you are a protestor, you need to be aware this is the standard; it would be logical to make the allegations that the agency decision was not reasonable.
Best value and trade off decisions in government bids are very subjective. As a government contractor, you should understand that GAO cannot second-guess the business decisions of the agency but they can review them for reasonableness.
Agencies use tax payer dollars and must be held accountable. The only way to logically check the reasonableness of the source selection criteria for best value trade off decision is to compare the agency’s written documentation against the selection criterion in a solicitation itself.
GAO has repeatedly stated that in order for it to review an agency’s evaluation judgment, an agency must have adequate documentation to support its judgment. Southwest Marine, Inc.; American Sys. Eng’g Corp., B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD ¶ 56 at 10.
Federal Acquisition Regulation (FAR) requires that agencies sufficiently document their best value trade off judgments, including documenting the relative strengths, deficiencies, significant weakness, and risks supporting their proposal evaluations. See FAR §§ 4.801(b), 15.305(a), 15.308.
A government contracting agency is not required to keep every document or worksheet generated during its evaluation of proposals, but the agency’s evaluation must be sufficiently documented to allow review of the merits of a protest.
Bid Protest Example
Here is an example of a GAO bid protest that illustrates how cases are decided:
The protestor, KBS, Inc., challenged the source selection criterion for best value trade offtrade off analyis in a bid protest. It protested the award of a contract to Blueridge General, Inc., under request for proposals (RFP) No. N40085-10-R-3002, issued by the Department of the Navy for exterior renovation and replacement of the roof of Building 3 at the Naval Medical Center in Portsmouth, Virginia.
- KBS challenged the evaluation of its proposal and the agency’s determination.
The GAO Protest was denied simply because the protestor failed to show that the agency’s evaluation criterion for best value trade off analyisis was unreasonable. See the full decision here.
In Bid Protests for Best Value Trade off Analysis, Agency Only Has to Make a Rational Decision and Not Be Arbitrary
When bid protest lawyers file a GAO protest and argue improper agency decisions based on selection criteria for best value, it must be supported with both case law and evidence. This also goes for trade-off decisions. If the agency fails to adequately document and justify its position, it may run the risk of GAO sustaining the protest.
- Under administrative law, the agency generally wins business judgment decisions because the burden to defeat the agency is very high for bid protest law firms. The agency’s decision simply has to be rational and not in violation of the rules. More specifically, the agency’s actions and decisions only have to make sense. This is generally called the ‘rational basis test.’
- To successfully prevail in challenging the Agency’s source selection criterion for best value trade off bid protest, the agency’s evaluation must be unreasonable, contrary to the award criteria in the solicitation, or a clear violation of law.
This is yet another reason that contractors who intend to file a best value trade off protest should seriously consider not filing on their own without proper legal guidance from their lawyers.