United States: Unreasonableness And Lack Of Documentation (Post-Award Protest Primer #17)

Last Updated: June 7 2018
Article by Daniel E. Chudd and James A. Tucker

Today's installment of the post-award protest primer combines two frequent, related protest grounds:  (1) unreasonable evaluations and source selection decisions and (2) insufficient documentation.  In a future post, we'll look more granularly at protest grounds best value tradeoffs in particular and the duties of source selection authorities.  Today, it's all about reasonableness and documentation.

Unreasonable Evaluations and Source Selection Decisions

In best value procurements, agencies are supposed to evaluate offerors' proposals in accordance with the solicitation's evaluation criteria.  Then, based upon the underlying merits in each offeror's price and non-price evaluation results, the agency undertakes a meaningful analysis to determine which proposal represents the best value to the Government.

We've previously discussed failures to evaluate proposals according to the stated evaluation criteria.  But what if the agency follows the terms of the solicitation, but you disagree with the agency's conclusions?

It will come as no surprise that the U.S Government Accountability Office (GAO) considers the evaluation of proposals to be within an agency's discretion.  As a result, the GAO does not step into an agency's shoes and try to determine de novo what ratings a proposal should have received or how a best value tradeoff should have come out.  Instead, the GAO examines the record to determine whether it was reasonable and consistent with the terms of the solicitation and the requirements of law.  In other words, if different minds could disagree over whether the agency's or the protester's preferred conclusion was more appropriate, the agency gets the benefit of the doubt.  A protester's mere disagreement with the agency's evaluation and source selection decision is not, on its own, a valid basis for sustaining a protest.

With respect to best value tradeoffs, the GAO generally does not second-guess an agency's documented determination that one offeror's superiority under non-price evaluation factors is (or is not) worth a particular price premium.  This means an agency might determine that slight technical superiority is worth paying a relatively large price premium, or that significant technical superiority is not worth a relatively modest price premium.  The GAO's review of a best value decision does not focus on the size of the technical or price delta, and does not require agencies to quantify the dollar value of various technical merits.  In the end, the GAO cares only about whether the documented tradeoff analysis considers the underlying merits of the competing proposals and whether the articulated rationale is not completely absurd.

A corollary to this "reasonableness standard" is that the GAO generally will not delve into the minutiae of technical complications where subject-matter experts may disagree.  When an evaluation rests on the "considered judgments of the agency's technical experts," the GAO will defer to the agency unless the protester can demonstrate that the experts' conclusions are "arbitrary or otherwise unreasonable."  Boeing Co., B-412441, Feb. 16, 2016, 2016 CPD ¶ 269 at 20.  This usually means that a protester can win a battle of "dueling experts" only if its own expert conclusively shows that the agency's experts were objectively wrong.  Simply providing a differing "second opinion" by a different expert will not be enough.  And, if the protester's "rebuttal" of the agency experts' scientific or engineering judgment consists only of "statements furnished by legal counsel," the protester probably should not make the argument at all.  See id. at 17.

So, if agency evaluators assigned the protester a weakness because it unrealistically proposed to perform a task with only 10 employees, but the protester can show that it actually proposed 20 employees, the GAO is likely to find this aspect of the evaluation unreasonable.  Or, if the source selection authority awarded to a higher priced offeror because of five superior features of the offeror's widget, but the protester can demonstrate that the awardee did not propose those five features for its offered widget, the GAO is likely to find the resulting source selection decision to be unreasonable.  On the other hand, protest grounds are almost certain to fail if they are nothing but subjective disagreements over matters of opinion.

Insufficient Documentation

As we've noted, a protester's mere disagreement with the agency's considered judgment generally is not a sufficient basis for sustaining a protest.  This presupposes, however, that the agency has documented a reasonable rationale supporting its determinations.  "Where an agency fails to document or retain evaluation materials, it bears the risk that there may not be adequate supporting rationale in the record for [the GAO] to conclude that the agency had a reasonable basis for its [evaluation or] source selection decision."  Verdi Consulting, Inc., B-414103.2 et al., Apr. 26, 2017, 2017 CPD ¶ 136 at 10.

As a practical matter, a protester's initial protest may allege that certain assigned weaknesses were unreasonable based upon arguments tending toward "mere disagreement."  That alone generally won't be enough to prevail.  But if the underlying procurement record does not adequately explain why the weaknesses were assigned, the agency may be in trouble.  This occasionally allows a protester to transform a weak protest ground into a strong one.  (Disparate treatment, which we've mentioned before and will reprise soon, also can turn a fairly weak subjective argument into a stronger black-and-white one.)

The extent of required documentation varies from issue to issue and procurement to procurement.  It needs to be enough, though, for the GAO to read it and decide that the agency's stated conclusions were not pulled out of thin air.  The GAO also gives agencies the opportunity to "fill in gaps" in the record by submitting post hoc declarations to provide explanations that are consistent with, but not fully spelled out in, the contemporaneous record.  By contrast, the GAO gives "little weight" to post hoc assertions that are not supported by the contemporaneous procurement record.  Dismas Charities, Inc., B-292091, June 25, 2003, 2003 CPD ¶ 125 at 8-9; Boeing Sikorsky Aircraft Support, B-277263.2; B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91.

The ultimate effect of a lack of documentation on contract award is difficult to predict.  Sometimes the rationale behind an evaluation and source selection decision is clear to the agency, even though the rationale was not adequately reduced to writing.  If a protest is sustained in this situation, corrective action may simply consist of generating some additional paperwork with no ultimate change in awardee.  If, on the other hand, the lack of documentation reflects a lack of an adequate rationale in the first place, the additional thought and reflection (and oversight by agency counsel) may well result in fundamentally different evaluations with a different award decision.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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