One of the recurring themes in bid protests that are sustained by the Government Accountability Office (“GAO”) is the need for agencies to look “beyond adjectival ratings,” and qualitatively assess the underlying merits of the technical proposals in negotiated procurements. Indeed, in a recent article, this author found that out of the last six years (2013-18), GAO has reported that “flawed selection decisions” was one of the seven most prevalent grounds for sustaining protests. See Lieberman, “Treating On the Same Rake-Learning from Agency Mistakes Identified in GAO Bid Protest Decisions,” Nat’l Contr. Mgt Assn ‘Contract Management’ (Jan. 2019) ( Available at https://docs.wixstatic.com/ugd/98886d_57246d26e5c948feb9b7b25758ba5e67.pdf). And within this category, there were numerous instances of sustained protests because of the failure to look beyond the adjectival ratings when making the source selection.
Two recent GAO decisions involved protests that were sustained for the same reason—Cyberdata Technologies, Inc., B-417084, Feb. 6, 2019 and Apogee Engineering, LLC, B-414829, Feb. 21. 2019.
In Cyberdata, there were two companies in contention for weather and climate computing services for the National Oceanic and Atmospheric Administration. The two were Cyberdata and Ace. Both companies were rated “Acceptable” for their technical approach, “Good” for their Corporate experience, and “Good” overall. The only difference on the face of the procurement was that Cyberdata’s price was $104.4 million, while Ace’s price was $102 million. The best value, cost-technical tradeoff was made in a simple way: the selection official concluded that because both offerors were rated good, the determining factor became price, and awarded to Ace.
Cyberdata protested that the agency failed to look behind the adjectival ratings in making the selection decision. GAO sustained the protest noting that the evaluation of proposals and consideration of their relative merit should be based upon a “qualitative assessment of proposals consistent with the solicitation’s evaluation scheme.” Adjectival scores alone are insufficient. Here, the agency looked only at the number of strengths assessed to each vendor to determine that the proposals were technically equal. In fact, the overall rating for Cyberdata was based on a combination of significant strengths and “some strengths” whereas the overall rating for Ace’s quotation was based on a combination of significant strengths and “several strengths”. The record did not demonstrate that the selection official considered the qualitative value of the vendors’ proposals, GAO sustained the protest.
In Apogee, there were two companies in contention for support services for the Department of Tansportation. Both Apogee and the awardee, CASE, had “Exceptional” ratings in all three technical areas evaluated—Technical Capability, Staffing/Resumes and Corporate Experience/Past Performance. The solicitation set forth a best value, cost-technical tradeoff. Apogee protested that the agency had merely looked at the adjectival (“exceptional”) ratings, without considering the underlying technical capability, and awarded to the lower price. In fact, the agency had assigned several strengths to each proposal, but the source selection official did not meaningfully look beyond the adjectival ratings, or consider the qualitative value of each proposal, in determining that the proposals were technically equal. On this basis, the GAO sustained the protest.
Takeaway. Agencies must justify the differences in proposals when making a selection, and look beyond the mere adjectival (or point scores) in their selection. Just because an adjectival value is the same, the underlying proposal could be better or worse, depending on how the evaluators rated it.
For other helpful suggestions on government contracting, visit:
Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes
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