Bidders gradually gaining a voice in bid evaluations

With past performance a major evaluation factor in nearly every procurement, doing it
right is a universal concern. Guidance comes from rewrites of the Federal Acquisition
Regulation, numerous agency rules and directives, and a growing list of bid protest
decisions.


Because the new regulations don’t answer every question, the missing pieces are
usually supplied, one at a time, by case decisions—especially General Accounting
Office bid protest rulings.


Thus, the guidebook on how to conduct such evaluations is evolving. Some general ideas
have emerged.


One is that, whenever possible, a prospective contractor must have a chance to answer
negative comments in its past-performance ratings.


This is of critical importance both to the government and to the vendor.


The government wants to make its evaluation based on accurate and up-to-date
information, and the contractor wants to put detrimental information in context. If a
bidder has such an opportunity, it won’t be blindsided by negative comments.


In general, the bid protest decisions of GAO state that a bidder must have notice of
and an opportunity to respond to negative past-performance information. The FAR has
codified this rule.


The problem of what to do when award is made without discussions is solved by the FAR
Part 15 rewrite.


If an agency intends to award without negotiations, it can still obtain clarification
from a bidder about past-performance information.


This process does not trigger discussions and the need to call for best-and-final
offers.


Alternatively, an agency can have communications with a bidder about its past
performance before establishing a competitive range.


If the bidder is not included in the competitive range, the agency doesn’t need to
invite that bidder to submit a BAFO.


One unanswered question is whether a bidder gets adequate notice and opportunity for
comment during the FAR Subpart 42.15 process.


This portion of the regulation sets out a uniform procedure for rating past performance
on contracts exceeding $1 million. The agency prepares its initial evaluation and forwards
it to the contractor, which can provide comments within 30 days. Interestingly, the Navy
is attempting to limit such responses to three pages or less.


If the contractor disagrees with the evaluation, the matter must be resolved by an
official one level above the contracting officer. The contractor’s comments are
retained in the file and are provided with the final ratings to any agency that is doing a
past-performance review.


At first blush, this process seems to satisfy the need to provide notice and an
opportunity for comment. But it may not be enough when pertinent information comes to
light after the rating process is over.


Moreover, the Subpart 42.15 process provides no chance for a bidder to report on later
corrective measures it has taken.


Therefore, a procuring agency probably should ask a bidder if it wishes to update its
information.


The evaluation process, however, can become complex. In more than one case, GAO has
encouraged agencies to distinguish between the performance of the prime contractor and the
subcontractor. If a problem relates more to one, it may not be fair to attribute it to the
other.


Even more difficult questions result when the bidder disagrees with the negative
information.


Here, GAO is torn between its tendency to resolve differences in the agency’s
favor and a concern that the evaluation fairly reflect accurate information.


In one recent case, Trifax Corp. of Washington was expelled from the competitive range
because of various allegations reported in a newspaper article about a contract with a
local government.


The company disputed each allegation. The procuring agency accepted some of what Trifax
said but apparently did not credit other responses and didn’t explain why.


This wasn’t the only inconsistency in the record.


GAO found that other bidders with similar performance problems received higher scores.


The protest was sustained, and the agency was told to redo its evaluation.


Postscript: In my last column on use of clear language, there was a reference to a
statement made, and partially recanted, by President Clinton in the Lewinsky case. This
reference was an editing addition and not something I wrote.  


Joseph J. Petrillo is an attorney with the Washington law firm of Petrillo &
Powell, PLLC. E-mail him at jpetrillo@counsel.com.
 


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