The government is free to use a variety of evaluation factors in evaluating proposals. However, the RFP must describe the factors and significant sub-factors to be used to evaluate proposals and their relative importance and agencies must evaluate the proposals according to the criteria established in the solicitation. Agencies must evaluate proposals in accordance with criteria spelled out in the solicitation (PHT Supply Corp. v US 71 Fed. Cl. 1) and a protest was sustained where the record showed the agency did not properly evaluate the proposal in accordance with the solicitation’s cost realism criterion (Serco Inc. B-298266). In 2006 the GAO sustained several protests where the agency’s source selection decision was irrational and/or inconsistent with the administrative record. In deciding these protests the GAO generally considered the record at the time of evaluation and gave little weight to hypothetical arguments presented during the protest hearing. For example, a protest was denied where the record showed the agency made a reasonable determination that the technical superiority was worth the additional price (Publia Engrg of CA, B-297413).

Agencies must apply evaluation criteria equally to all competitors. A protest was sustained that claimed the agency permitted the awardee to propose to perform the contract on a basis different than was required in the contract without allowing other offerors the same opportunity (Wiltex Inc. B- 297444.2). An award for an operation and maintenance contract was invalidated because the
agency’s technical evaluation applied a significantly more stringent standard of review to the protester’s proposal and where it had applied reasonable skepticism in evaluating others’ proposals the agency had “abandoned this skepticism” (BAE Systems Technical Svcs, B-296699). Agencies must consider cost or price in evaluating competing proposals and ruled that a competitive range determination was invalid because price was not properly considered (Avue Technologies, B-298380.3). Also the GAO held that under a task order for services the ordering agency must consider the proposed level of effort and mix of labor to determine that the total price is reasonable even if the solicitation does not call for such a determination (Advances Technology Systems, B-298493.6).

Cost realism analysis decisions received considerable attention in 2006. In one decision the GAO held the agency’s cost realism’s upward adjustment of a proposal was unreasonable because it resulted in the awardee being evaluated as having a lower cost than the protester such that no cost/technical analysis was performed (Kellogg Brown & Root, B-298694). Where an offeror intended to team the agency must perform a cost realism analysis that takes into consideration each team members rates (Metro Machine Corp., B-297870.2). The agency engaged in improper cost realism analysis in the form of “normalization” of proposed costs i.e. making adjustments to all proposals in the same way when offerors had proposed different techniques to carry out the work (Information Ventures, B-297296.2).

FAR 9.104 states that for an offeror to be considered responsible, it must, among other things, be able to comply with the required performance schedule, have adequate financial resources, and have the necessary organization, experience, operational controls and technical skills or the ability to obtain them. The burden falls on the contractor to demonstrate its responsibility and in the absence of information clearly indicating responsibility, the CO must make a determination on non-responsibility. The Court rules it will not disturb a non-responsibility determination unless the protester can show the agency had no reasonable basis for its determination – simply put, this is a matter where the CO is vested with broad discretion in exercising its judgment (United Enterprise
& Assoc. v US, 70 Fed. Cl. 1). In a decision related to the offeror’s capability to perform the work, the Court ruled such a decision constituted a non-responsibility determination where the CO was given the benefit of the doubt (Fabritech, Inc. B- 298247).

There were many cases addressing firms’ organizational conflict of interest (OCI). The GAO ruled there was an “impaired objectivity” OCI that resulted from the contractor’s continuing to receive ayment from a firm over which it would havemanagement responsibility (Greenleaf Construction, B-293105). The GAO also ruled there was an impaired objectivity OCI where several evaluators were employed by firms that promoted a type of technology that was directly challenged by that offered by the protester. It ruled the agency’s reliance on the evaluator’s self-certification of the absence of COI did not meet its obligation to ensure no COI existed, especially where the evaluators worked for a firm whose “economic lifeblood” was directly competitive with the other technology (Celdon Labs, B-298533). The GAO also ruled there was an OCI in providing a. spectrum of engineering support services to a contractor who was involved in the manufacture and marketing of spectrum-dependent products (Alion Science and technology, B-297342).

On the other hand, no serious OCI existed where there was limited opportunity for COI and there was a mitigation plan in place by the agency (Overlook Systems Technologies , B298099). Even though one of the
awardee’s joint venture partners could be providing contract close-out services on awardee’s task orders
no OCI existed because such services did not involve judgment, evaluation or assessment in performance of
the contract (Leader Communications, B-298734). The Court found that the awardee, as the incumbent
contractor, did not have the type of specific, sensitive information that would create an OCI holding that an
incumbent status, without more, typically does not constitute “unequal access” to information sufficient
to constitute OCI (Systems Plus v US, 69 Fed. Cl. 757). The Court also found that awardee did not gain unequal
access to information where the information is in the public domain, did not quality as bid and proposal
information, was not proprietary or did not result in any unfair advantage (Avtel Svcs v US, 70 Fed. Cl 173).
The GAO ruled the fact the supervisor of two of the evaluators was a former employee of the awardee did
not afford the awardee an unfair advantage because the supervisor did not exert improper influence in the
procurement. The GAO also found there was no OCI even though a subcontractor of the awardee was a
former agency official who had served as an evaluator of the proposal of the protester in a prior procurement
because the former official had signed a nondisclosure agreement and his only involvement in the preparation
of the proposal was limited to submission of a subcontract proposal (Maden Technologies, B-298543.2).

Agencies generally must include all of the most highly rated proposals in the competitive range. An agency is
not required to retain in the competitive range a proposal that has no realistic chance for award and
may exclude such a proposal even if such exclusion results in a competitive range of one (Brian X. Scott,
B-208568). But it was not reasonable to eliminate an offeror from the competitive range when the awardee’s
initial proposal was “technically unacceptable” while the excluded protester was “highly acceptable” and
the basis for exclusion was a 15% higher proposed price (Global A 1st Flagship, B-297235).

{TAG_FORM_TITLE}