Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest sustained.
Protest challenging evaluation of agency tender in public-private competition under Office of Management and Budget Circular A-76 is sustained where the record contains inconsistent statements by the agency in its contemporaneous evaluation and inadequate documentation of the agency’s findings regarding the tender’s shortcomings.
General Counsel P.C. Highlight:
The agency tender official asserts that, after finding the agency tender acceptable after several rounds of discussions, the agency improperly conducted yet another round of discussions, as a result of which the agency tender no longer was the lowest-priced tender/offer received. In response, the agency argues that the technical evaluation board (TEB) in fact did not find the agency tender acceptable until after the final round of discussions, despite having described the agency tender as acceptable in the TEB report prepared after the prior round of discussions. The key question in resolving the protest thus is whether the agency’s evaluation record adequately shows that the agency did–or did not–find the agency tender acceptable before the final round of discussions. GAO first states that although the FAR does not specify what is required to be documented in the contract file in support of an agency’s evaluation of proposals, the fundamental principle of government accountability dictates that an agency maintain a record adequate to allow for the meaningful review of the merits of a protest. This principle applies equally in the context of a public-private competition under the Circular. An agency that fails to adequately document its evaluation of proposals bears the risk that its determinations will be considered unsupported, and absent such support, GAO may be unable to determine whether the agency had a reasonable basis for its determinations. That is not to say that GAO, in determining the reasonableness of an agency’s evaluation and award decision, limits its review to the contemporaneous evaluation and source selection documentation. Rather, GAO will consider, in addition to the contemporaneous documentation, all information provided to it for consideration during the protest, including the parties’ arguments and explanations, so long as the information is credible and consistent with the contemporaneous record.
GAO also states that in considering the entire record, it accords greater weight to contemporaneous evaluation and source selection material than to the parties’ later explanations, arguments, and testimony. Where the record before GAO is inconsistent or incomplete to such an extent that it cannot find the agency’s evaluation of proposals to be reasonable, GAO will sustain the protest.
The agency held a total of five rounds of discussions with the agency tender official; at the conclusion of the fourth round, the agency tender was lower-priced than the eventual awardee’s offer. Thus, if (as the agency tender official argues) the agency tender in fact was found acceptable after the fourth round of discussions, holding the fifth and final round of discussions was improper. Further, those discussions resulted in prejudice to the agency tender because the agency tender’s price increased as a result, to a price greater than the eventual awardee’s, thus displacing the agency tender as the lowest-priced technically acceptable offer/tender. In response, the agency argues that the record clearly shows that, despite having described the agency tender as acceptable before initiating the fifth round of discussions, the TEB in fact found the agency tender unacceptable, and thus properly conducted another round of discussions.
The dispute regarding the TEB’s findings derives principally from the conflicting language in the July TEB report, specifically, the repeated description of the agency tender as acceptable alongside this sentence: “This weakness will need to be corrected before implementing the MEO can be considered.” The agency does not assert that these statements are reconcilable; rather, the agency argues that the TEB made an error in describing the agency tender as acceptable and that the quoted sentence from the TEB report is contemporaneous evidence that the TEB in fact considered the fourth revised agency tender unacceptable. In support of its position, the agency, pointing to the RFP definitions of acceptable and marginal proposals, asserts that the agency tender could not be regarded as acceptable because it contained a weakness that had to be corrected before implementation of the MEO. Even accepting the agency’s interpretation of the RFP definitions of acceptable and marginal, the agency’s argument still does not resolve the conflict between the TEB report’s description of the agency tender as acceptable and the finding in the same report that the agency tender had a weakness needing correction before the MEO could be considered. Those two statements cannot both be accurate, and GAO sees no basis to conclude that the mistake was in the characterization of the agency tender as acceptable, rather than in the finding that the agency tender contained a deficiency, as evidenced by the statement that the agency tender contained a weakness requiring correction. On the contrary, the record strongly suggests that the description of the agency tender as acceptable reflects a deliberate choice by the TEB, given that, in the prior three rounds of discussions and evaluations, the agency characterized the agency tender as poor before making the significant change–to repeatedly describing the agency tender as acceptable, sometimes in bold capital letters–in the July report. Based on the record, with inconsistent statements by the agency in its evaluation of the fourth revised tender and inadequate documentation of a finding that the tender was unacceptable, GAO sustains the protest.