While the GAO recognizes that an Agency must have discretion in making its source selection decisions, it has not hesitated to overturn improper decisions. Certain basic rules, consistent with federal acquisition rules, have emerged from the cases: evaluations must be consistent with the solicitation’s evaluation plan, assessment of proposals and selection decisions must be documented, discussions must be meaningful and equal and considerations of contractors’ past performance must be appropriate.

Evaluation Criteria

The statutes (10 USC $2305(a)(2)(1994)) and acquisition regulations (FAR 15.304 and 15.305) requires agencies to state, in their solicitations, factors used for evaluating proposals and their relative importance. The basis for reversing an award lies in whether agencies have improperly relaxed the ground rules enunciated in the solicitation. Examples of improper relaxation of a RFP’s minimum requirements included a storage and retrieval system awardee (CNA Industrial Engineering., Inc., Comp. Gen. Dec. B-271034) and an on-site engineering winner (SMS Systems Maintenance Services Inc., Comp. Gen. Dec. B-270816) where the GAO ruled both awardees lacked the experience called for in the solicitation.

Agencies may not impose unannounced criteria not specified in the solicitation of proposal evaluation. An agency’s rejection of a low priced proposal because the proposal did not include information on key personnel was held to be improper because the RFP did not mention the need to submit staffing information (Access Logic Inc., Comp. Gen. Dec. B-274748).

A selection cannot be based on erroneous or mistaken evaluation of proposals. The decision to award a higher priced, higher technically rated contract was based on the erroneous belief that only the awardee had "value added strengths". The award was reversed because the protester, in reality, had four of the six strengths (Main Building Maintenance, Inc., Comp. Gen. Dec. B-260945). Also, a source selection official’s mistaken assessment that a bid did not have the lowest price for two items was grounds to reverse an award (TFA, Inc., Comp. Gen. Dec. B-243875).

Documentation

FAR 13.305 requires agencies to document the relative strengths, deficiencies, weaknesses and risks supporting an evaluation. It also requires, when tradeoffs are performed, that source selection records include an assessment of each offeror’s ability to accomplish technical requirements as well as a summary matrix or quantitative ranking with narratives of each technical proposal. FAR 15.308 requires comparative assessment of proposals against selection criteria in the solicitation as well as rationale for business judgements.

The case law indicates that though the GAO is looking for a record that provides an explanation for its source selection decision the GAO is fairly flexible as to the form and content of the record. It is not seeking to burden the procurement system with any particular quantity of information. When the GAO assesses source selection documentation the entire record, including subsequent records compiled in response to a protest is considered, but it will give greater weight to records compiled at the time the proposal was being evaluated.

The GAO distinctly dislikes source selection decisions where the record shows adjectival ratings ("good", "poor"), point scores or mechanical formulas without narrative explanations for selecting one company over another. It has sustained protests where there is no reasoned explanation for technical/cost tradeoffs (Redstone Technical Services, Comp. Gen. Dec. B-261658).

Discussions

A critical phase of the evaluation process is the content and nature of discussions. FAR 15.306(d) requires COs in negotiated contracts to conduct discussions with all offerors in the competitive range. Agencies must point out significant weakness, deficiencies or other aspects of a proposal (cost, price, technical approach, past performance, excesses, etc.) that can be altered or explained to enhance a proposal’s chance of winning. It need not be all encompassing but must be "meaningful" – agencies must lead offerors into parts of the proposal that need amplification or revision. If discussions are flawed, the GAO will sustain a protest and recommend reopening discussions, submiting a new best and final offer or having a new source selection decision.

Examples of successfully protested cases include:

1. Cannot refrain from discussing a problem by defining it as unimportant. In spite of the chair’s comfort being "of major importance" for a contract to produce chairs, the failure to discuss a protesters lack of comfort was grounds for the GAO ruling the discussions be reopened (Global Industries, Inc., Comp. Gen. Dec. B-270592.2).

Discussions must be fundamentally equal. An agency advised one of the competitors that it would be desirable to obtain an upgraded, higher performance computer system who then included it in their BAFO. The GAO sustained the protest of the other competitor on the grounds the information was not shared with the other offerors (Seaspace, 70 Comp. Gen 268).

An agency cannot ask identical questions of all firms when problems found are specific to one firm. The GAO found improper questions were being asked during discussions that did not identify specific deficiencies (Price Waterhouse, Comp. Gen. Dec. B-222562).

An agency cannot give one firm an opportunity to revise its proposal, cure deficiencies or alter its technical or cost elements without conducting discussions with others in the competitive range. An agency’s discussions solely with the awardee that resolved ambiguous pricing and delivery terms was ruled improper (Integrated Systems Group, Comp. Gen. Dec B-272336).