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Contracting Officer as Technical Evaluation Panel Chairman


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As a member of a Federal procurement policy team, I've been asked if I'm aware of any prohibition that precludes a Contracting Officer (CO) from serving as the chair of a Technical Evaluation Panel (TEP).

Background: The requirement consists of furnishing support services for a multitude of different offices, of which, no one office wants to take the lead as project manager. There is discussion that management is now steering the requirement back to the CO to take the lead as the TEP chair.

Although the FAR does not descriptively detail the separation of duties that comes to mind regarding this situation, my instinct is that although there is no specific probihition for doing this, my experience tells me this is a potentially volatile conflict of interest situation and that it may not necessarily be the best business decision to employ to handle this.

Keenly interested if anyone has encountered this situation, and what was the outcome? Other thoughts and/or suggestions are also invited.

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Guest Vern Edwards

There is no law or government-wide regulation or policy that prohibits a CO from serving as chair of a technical panel. There may be agency specific policies to that effect, but I am not aware of any.

I don't think that there is any "potentially volatile conflict of interest situation" either. That's over-the-top.

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I agree with Vern. The closest thing I could find, and it is probably a stretch, is DFAR 203.170(a). It provides:

Senior leaders shall not perform multiple roles in source selection for a major weapon system or major service acquisition.

First, the functions seem to be defined broadly as "oversight, source selection, contract negotiation, and contract award." Second, this is limited to "major weapon systems" and "major service acquisitions." Finally, it is limited to "senior leaders." I certainly don't understand your "conflict of interest" reference. It sounds like you're confusing conflict of interest with separation of functions, which is usually a policy matter.

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  • 4 weeks later...

Hi,

In a recent competition the following phrase was in the RFP:

"The Government reserves the right to eliminate from consideration for award any or all offers at any time prior to award of the contract."

In addition the Contracting Officer has stated repeatedly he wants to "get rid" of a certain company. He is also chairman of the Technical Evaluation Panel (TEP).

Is it legal for him to not allow consideration of a proposal from a company for fear their technical and cost proposals would be found to be superior to the competition? Is there a FAR clause that addresses?

Could he just overrule any recommendation of the rest of the members of the TEP and award to the company that came in second?

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Guest Vern Edwards
[T]he Contracting Officer has stated repeatedly he wants to "get rid" of a certain company. He is also chairman of the Technical Evaluation Panel (TEP).

Is it legal for him to not allow consideration of a proposal from a company for fear their technical and cost proposals would be found to be superior to the competition? Is there a FAR clause that addresses?

Could he just overrule any recommendation of the rest of the members of the TEP and award to the company that came in second?

If the CO really said what you say he did after the start of a source selection, then he is a fool and should be reassigned.

It would not be proper ("legal") for the CO to eliminate an offeror because the offeror might be found better than another. (That was a silly question. Did you really think that the answer might be yes, or were you just looking for a quote you could use in an argument with the CO? The answer is so obviously no that I will not even bother to cite protest decisions in support of my response.)

However, if the CO is the source selection authority, i.e., the appointed decision maker, then he is not bound by the findings or the recommendations of the evaluators, even if they have the technical knowledge necessary to make the evaluation. The decision maker is bound only by the terms of the solicitation and the bounds of reasonableness. This is a very old principle. See Grey Advertising, Inc., 55 Comp. Gen 1111 (1976), B-184825, 76-1 CPD ? 625:

FURTHERMORE, WHILE POINT SCORES, TECHNICAL EVALUATION NARRATIVES, AND ADJECTIVE RATINGS MAY WELL BE INDICATIVE OF WHETHER ONE PROPOSAL IS TECHNICALLY SUPERIOR TO ANOTHER AND SHOULD THEREFORE BE CONSIDERED BY SOURCE SELECTION OFFICIALS, SEE EPSCO, INCORPORATED, B-103816, NOVEMBER 21, 1975, 75-2 CPD 338, WE HAVE RECOGNIZED THAT SELECTION OFFICIALS ARE NOT BOUND BY THE RECOMMENDATIONS MADE BY EVALUATION AND ADVISORY GROUPS. BELL AEROSPACE COMPANY, 55 COMP.GEN. 244 (1975), 75-2 CPD 168; TRACOR JITCO, INC., SUPRA; 51 COMP.GEN. 272 (1971); B-173137(1), SUPRA. THIS IS SO EVEN THOUGH IT IS THE WORKING LEVEL PROCUREMENT OFFICIALS AND EVALUATION PANEL MEMBERS WHO MAY NORMALLY BE EXPECTED TO HAVE THE TECHNICAL EXPERTISE RELEVANT TO THE TECHNICAL EVALUATION OF PROPOSALS.

Capitalization in original.

The decision maker must be able to show that his decision was consistent with the terms of the RFP and was reasonable.

(Napolik, one of the most knowledgeable contributors to this website, was the contract specialist in the Grey Advertising, which is one of the most famous GAO protest decisions of all time.)

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"The Government reserves the right to eliminate from consideration for award any or all offers at any time prior to award of the contract."

Thank you for your response - that clarifies this for me. The reason I asked about them not even considering the bid of the company the Contracting Officer "wants to get rid of" was because of the phrase above that is in the solicitation. I guess it doesn't matter though since as you said he can ignore the recommendation of the technical panel.

If the TEP in fact graded my company's proposal as the winning one and the Contracting Officer in fact awards the contract to another company it will make for an interesting debriefing!

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Guest Vern Edwards

I don't know what agency you are dealing with, but in most agencies the evaluation panels do not assign a "winning" grade. They merely evaluate proposals and report their findings to a decision maker. Sometimes they make an award recommendation and sometimes they do not, depending on agency practice. It has happened many times that decision makers have rejected the recommendations of their evaluation boards. Protests on that account are rarely sustained. See. e.g., the GAO's protest decision in Crown Title Corp., B-298426, Sept. 21, 2006, 2006 CPD ? 145:

In reviewing a protest against an agency's evaluation of proposals and award, including tradeoff determinations, we examine the record to determine whether the agency's judgment was reasonable and consistent with the solicitation's evaluation criteria and applicable statutes and regulations. Ostrom Painting & Sandblasting, Inc., B?285244, July 18, 2000, 2000 CPD ? 132 at 4. An agency may properly select a lower-rated, lower-priced proposal?even where price is set out in the solicitation as a significantly less important factor than technical merit?where it reasonably concludes that the price premium involved in selecting a higher-rated proposal is not justified in light of the acceptable level of technical competence available at a lower price. Bella Vista Landscaping, Inc., B?291310, Dec. 16, 2002, 2002 CPD ? 217 at 4. Source selection officials are not bound by the recommendations of lower level evaluators but, rather, have the discretion to make price/technical tradeoffs; the extent of such tradeoffs is governed by the test of rationality and consistency with the evaluation criteria. Best Temporaries, Inc., B?255677.3, May 13, 1994, 94?1 CPD ? 308 at 3. A protester's mere disagreement with the agency's determinations as to the relative merit of competing proposals and its judgment as to which proposal offers the best value to the agency, does not establish that the evaluation or source selection was unreasonable. Weber Cafeteria Servs., Inc., B?290085.2, June 17, 2002, 2002 CPD ? 99 at 4.

An contracting officer who knows what he or she is doing can award the contract to anybody and do so in a manner that would make the chances of a successful protest virtual nil.

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Ok and again thanks for the information.

In the quoted protest the higher technically rated company had the higher price so there was a legitimate trade off decision. If however one company had both a higher technical rating and a lower cost it would seem that awarding the contract to another offeror would be more difficult although apparently possible.

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Guest Vern Edwards
In the quoted protest the higher technically rated company had the higher price so there was a legitimate trade off decision. If however one company had both a higher technical rating and a lower cost it would seem that awarding the contract to another offeror would be more difficult although apparently possible.

If the agency knows what it is doing it can award to anybody. See Bank Street College of Education, 63 Comp. Gen. 393, B-213609, 84-1 CPD para. 607, in which the decisionmaker overruled a 10-person evaluation board and awarded the contract to the offeror with the lowest technical score and the highest price. The GAO denied the protest on the grounds that the decisionmaker was not bound by the scores assigned by the evaluators., he followed the criteria in the RFP, and his decision was reasonable.

If I were a CO and wanted to ensure that a certain company does not get the award, I could set up the RFP in such a way as to make it very unlikely that the firm would win. I couldn't guarantee it, but I could set the odds in my favor.

Of course, that would be wrong.

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