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FAR 15.305 (a):  Rating method or combination of methods

Comptroller General - Key Excerpts

CE also challenges the selection of Solution One’s proposal as reflecting the best value to the agency. Specifically, CE contends that, because both firms received identical past performance ratings, the agency’s determination that Solution One had better past performance was inconsistent with the RFP’s evaluation criteria. Comments at 5. There is no merit to this argument.

We have long recognized that color or adjectival ratings are merely guides for intelligent decision-making in the procurement process. See Citywide Managing Servs. Of Port Washington, Inc., B-281287.12, B-281287.13, Nov. 15, 2000, 2001 CPD ¶ 6 at 11. Therefore, evaluators and SSAs should reasonably consider the underlying bases for ratings, including the advantages and disadvantages associated with the specific content of competing proposals, in a manner that is fair and equitable and consistent with the terms of the solicitation. See Systems Research and Applications Corp.; Booz Allen Hamilton, Inc., B-299818 et al., Sept. 6, 2007, 2008 CPD ¶ 28 at 24.

Here, the record shows that the agency reasonably found meaningful differences between the quantity and quality of these firms’ past performance, notwithstanding the firms’ identical satisfactory confidence ratings. With respect to CE’s past performance, the SSA found CE had not identified past performance that was of a scope or magnitude remotely similar to the effort required here. AR, Tab 15, Source Selection Decision, at 19. The SSA found, on the other hand, that Solution One identified past performance of a scope and magnitude nearly identical to the work solicited here. The SSA also found that Solution One had received very favorable past performance ratings for its relevant work. Moreover, the awardee’s proposal was the only one that the PCAG found to have an identified strength under the past performance factor, which the SSA found significant.

Recognizing that CE’s price was lower than the price of Solution One, the SSA determined that Solution One’s stronger record of relevant past performance was worth the price premium. Although CE disagrees with the SSA’s judgment in this regard, it has not shown it to be unreasonable.  (CE Support Services JV, B-406542.2, Sep 28, 2012)  (pdf)
 


Consensus Evaluation

Hi-Tec asserts that TSA improperly excluded its proposal from the competitive range based on the assessment of a single evaluator. Comments at 4-5. In this regard, of the three evaluators on the TET, two found Hi-Tec's technical approach to be acceptable in their individual evaluations, AR, Tab 10, at 00555-00558, 00559-00574, and only the third found it unacceptable. Id. at 00548-00554. Hi-Tec asserts that the third evaluator, who had been a contracting officer's technical representative on a prior TSA contract and previously had praised Hi-Tec's performance, "nevertheless ignored his own knowledge and information contained in Hi-Tec's proposal and irrationally found Hi-Tec's proposal unresponsive to these same requirements." Comments at 5. The protester also asserts that the deficiencies found in the consensus evaluation "essentially mirror" the third evaluator's evaluation and that the agency improperly decided "to allow one evaluator's irrational views to trump the views of the rest of the TET." Id.

This argument is without merit. It is not unusual for individual evaluator ratings to differ significantly from one another, or from the consensus ratings eventually assigned; indeed, the reconciling of such differences among evaluators' viewpoints is the ultimate purpose of a consensus evaluation. James Constr., B-402429, Apr. 21, 2010, 2010 CPD para. 98. Our concern is not whether the final ratings were consistent with a particular individual evaluator's ratings, but whether they reasonably reflect the relative merits of the proposals. Bering Straits Tech. Servs., LLC, B-401560.3, B‑401560.4, Oct. 7, 2009, 2009 CPD para. 201 at 3. As indicated above, we find that TSA's evaluation of Hi-Tec's proposal was reasonable; the evaluation reasonably reflects the merits of Hi-Tec's proposal. Thus, the fact that the consensus evaluation may ultimately reflect a view initially attributable primarily to a certain evaluator is not a valid basis for challenging the evaluation conclusions. Rather, again, this is one of the outcomes that reasonably can be anticipated from the developing of a consensus evaluation.

We conclude that there is no basis for objecting to the evaluation, and that the resulting elimination of Hi-Tec's proposal from the competitive range was reasonable.  (Hi-Tec Systems, Inc., B-402590; B-402590.2, June 7, 2010)  (pdf)


Evaluation and Scoring Methodology

As an initial matter, Fintrac argues that, during the reevaluation, USAID improperly changed the weights applied to the technical evaluation subfactors. Fintrac argues that the revised scoring methodology was inconsistent with the terms of the solicitation. We disagree.

As discussed above, the RFP set forth two conflicting bases for the evaluation of technical proposals. On the one hand, it stated that the factors were listed in descending order of importance; on the other hand, it identified point scores for factors that were inconsistent with a scheme of descending weight. USAID clarified this ambiguity in amendment 3 to the solicitation, stating that the point scores established the weight for the evaluation factors. RFP amend. 3, Q&A No. 42. As also discussed above, USAID concluded during the corrective action that the scoring methodology for the technical evaluation subfactors was flawed because although the RFP was silent as to the weight of the subfactors, the agency had weighted them in descending order of importance. The CO therefore instructed the TEC to evaluate offerors’ proposals by giving equal weight to the subfactors. CO Statement at 4; Supp. CO Statement at 18.

Solicitations must advise offerors of the basis upon which their proposals will be evaluated. Lloyd H. Kessler, Inc., B-284693, May 24, 2000, 2000 CPD para. 96 at 3. Contracting officials may not announce in the solicitation that they will use one evaluation scheme and then follow another without informing offerors of the changed plan and providing them an opportunity to submit proposals on that basis. Kumasi Ltd./Kukawa Ltd. et al., B-247975.7 et al., May 3, 1993, 93-1 CPD para. 352 at 7.

The RFP clearly stated that the phrase “descending order of importance” applied to the major evaluation factors, as follows: “The following technical evaluation criteria shall be evaluated in descending order of importance. (a) Technical Approach, (b) Personnel. . . .” RFP at 96 (emphasis added). Although the solicitation initially contained a patent ambiguity regarding the weights accorded to the evaluation factors, this ambiguity was resolved in amendment 3 to the RFP. In contrast, the RFP was silent as to the weight of the subfactors. We have recognized where a solicitation does not disclose the relative weight of evaluation factors or subfactors in a FAR Part 15 procurement, they should be considered approximately equal in importance or weight. Bio-Rad Labs., Inc., B-297553, Feb. 15, 2006, 2007 CPD para. 58 at 6. Accordingly, we think the agency correctly decided to treat the subfactors as having equal weight during its reevaluation.  (Fintrac, Inc., B-311462.2; B-311462.3, October 14, 2008)  (pdf)


An agency may not announce in the solicitation that it will use one evaluation plan and then follow another; once offerors are informed of the criteria against which their proposals will be evaluated and the source selection decision made, the agency must adhere to those criteria or inform all offerors of significant changes. American Guard Servs., Inc., B-294359, Nov. 1, 2004, 2004 CPD para. 225 at 6; DynCorp, B-245289, B-245289.2, Dec. 23, 1991, 91-2 CPD para. 575 at 5. Where a solicitation provides for award on a “best value” or “most advantageous to the government” basis, it is the function of the source selection authority to perform price/technical tradeoffs, that is, to determine whether one proposal’s technical superiority is worth the higher price, and the extent to which one is sacrificed for the other is governed only by the test of rationality and consistency with the stated evaluation criteria. See Chenega Technical Prods., LLC, B-295451.5, June 22, 2005, 2005 CPD para. 123 at 8; Leach Mgmt. Consulting Corp., B-292493.2, Oct. 3, 2003, 2003 CPD para. 175 at 3-4. Where a price/ technical tradeoff is made, the source selection decision must be documented, and the documentation must include the rationale for any tradeoffs made, including the benefits associated with additional costs. FAR sections 15.101-1(c), 15.308; All Star-Cabaco Enter., Joint Venture, B-290133, B-290133.2, June 25, 2002, 2002 CPD para. 127 at 8-9. MIL challenges the agency’s source selection decision. Specifically, MIL alleges that the Navy improperly converted the basis for the award determination from best value, as set forth in the solicitation, to a low priced/technically acceptable evaluation. The protester argues that had the contracting officer properly performed a best-value determination, she would have realized that the technical advantages of MIL’s quotation warranted its higher price. MIL also argues that the agency failed to adequately document the best-value determination. In making the source selection decision here, the contracting officer premised her determination upon review and acceptance of the evaluation findings and ratings of the vendors’ quotations under the stated evaluation factors as follows:
 

 

Management Plan

Past Performance

Technical Approach

Price

Anteon

Outstanding

Highly Satisfactory

Outstanding

$2,428,841

MIL

Outstanding

Highly Satisfactory

Outstanding

$2,517,353

Vendor C

Outstanding

Highly Satisfactory

Highly Satisfactory

$2,315,432

AR, Tab W, Source Selection Decision, at 1.

The contracting officer then determined that although Anteon’s quotation was priced $113,408.53 (4.7 percent) higher than Vendor C’s quotation, Anteon’s quotation represented the best value to the government because of its superior technical approach. Id. at 2. After the filing of MIL’s protest, the contracting officer amended her source selection decision to elaborate on the rationale for selection of Anteon over MIL as follows:

On technical, Anteon was considered to have the highest rating having received an overall outstanding score from both evaluators. Next were [Vendor C] and The MIL Corp. with an outstanding and highly satisfactory from each evaluator. Anteon was selected over [Vendor C] because it received a higher technical rating and was below the government estimate. The proposal from The MIL Corp. was much higher than the proposal from [Vendor C] and higher than Anteon’s. Because The MIL Corp.’s proposal was higher priced than Anteon’s and received a lower average score, it was not considered further for award.

AR, Tab X, Amended Source Selection Decision. Here, contrary to the protester’s assertions, we find that the Navy did not improperly change the award basis from best value to low priced/technically acceptable. As evidenced by the contemporaneous record, the agency evaluated vendors’ quotations using an adjectival rating system that distinguished vendors’ relative technical merits on other than an acceptable/unacceptable (pass/fail) basis. The contracting officer then performed a price/technical tradeoff and determined that Anteon’s technical superiority vis-à-vis Vendor C was worth the difference in price. As the contracting officer reasonably determined that the quotations of Anteon and MIL were, at best, technically equal, and Anteon’s price was lower than MIL’s (so that no price/ technical tradeoff analysis was needed), we see no basis to find unreasonable the contracting officer’s selection of Anteon’s quotation over that of MIL as representing the best value to the Navy. The fact that no tradeoff analysis was required between Anteon and MIL as part of the source selection decision does not negate the fact that the agency properly adhered to the RFQ’s best-value selection basis. See SAMS El Segundo, LLC, B-291620, B-291620.2, Feb. 3, 2003, 2003 CPD para. 44 at 19; Weber Cafeteria Servs., Inc., supra, at 6. Moreover, in light of the agency’s determination that the quotations of Anteon and MIL were no more than technically equal and that no tradeoff between these quotations was required, we see no basis to conclude that the agency failed to adequately document its source selection here. (The MIL Corporation, B-297508; B-297508.2, January 26, 2006) (pdf)


CRT and EDS challenge the specific color ratings assigned by the agency to various factors and subfactors. They contend that the rating scheme “lacked coherent standards,” and that the color ratings assigned were inconsistent with the advantages and disadvantages of the offerors’ proposals. Ratings, be they numerical, adjectival, or color, are merely guides for intelligent decision-making in the procurement process. Citywide Managing Servs. of Port Washington, Inc., B‑281287.12, B‑281287.13, Nov. 15, 2000, 2001 CPD para. 6 at 11. Where the evaluators and the source selection decision reasonably consider the underlying bases for the ratings, including advantages and disadvantages associated with the specific content of competing proposals, in a manner that is fair and equitable and consistent with the terms of the solicitation, the protesters’ disagreement over the actual adjectival or color ratings is essentially inconsequential, in that it does not affect the reasonableness of the judgments made in the source selection decision. See id.; National Steel and Shipbuilding Co., B‑281142, B‑281142.2, Jan. 4, 1999, 99-2 CPD para. 95 at 15. In response to the protest, the Army provided a detailed record of its evaluation and source selection decision. This analysis shows that the agency evaluated the relative merits of the proposals and assessed ratings in a fair and impartial manner, consistent with both the RFP and rating definitions. Although not every advantageous feature of each proposal was formally labeled as such and the source selection decision may not have discussed each and every asserted strength and weakness, as the protesters would have liked, the record demonstrates that the SSEB and SSA considered all of the information available, and issued a well‑reasoned and rational SSEB report and source selection decision that highlighted the key discriminators among the offerors’ proposals. Based on this reasonable discussion and assessment of relative advantages and disadvantages associated with the specific content of proposals, we find that the protesters’ disagreements with the actual color ratings are inconsequential, given that they do not affect the reasonableness of the judgments made in the source selection decision. See Citywide Managing Servs. of Port Washington, Inc., supra, at 11. (Cherry Road Technologies; Electronic Data Systems Corporation, B-296915; B-296915.2; B-296915.3; B-296915.4; B-296915.5, October 24, 2005) (pdf)


Where a solicitation indicates the relative weights of evaluation factors, as opposed to providing for selection of the lowest-priced, technically acceptable proposal, the agency is not limited to determining whether a proposal is merely technically acceptable; rather, proposals may be evaluated to distinguish their relative quality by considering the degree to which they exceed the minimum requirements or will better satisfy the agency’s needs. Israel Aircraft Indus., Ltd., MATA Helicopters Div., B-274389 et al., Dec. 6, 1996, 97-1 CPD para. 41 at 5-6; Meridian Corp., B-246330.3, July 19, 1993, 93-2 CPD para. 29 at 6-7. Here, as the solicitation provided for award on the basis of factors whose relative weights were disclosed, the Navy properly could consider in its evaluation both the extent to which proposals exceeded the RFP requirements and the extent to which offerors used innovative measures to respond to those requirements. The fact that EJB’s proposal received favorable evaluation consideration on these bases thus is unobjectionable.  (IAP World Services, Inc., November 1, 2005) (pdf)


Trajen and Maytag assert that the evaluation was flawed because the agency did not follow the evaluation scheme outlined in the RFP. Specifically, they note that, while the RFP provided for an evaluation using five adjectives--exceptional, very good, satisfactory, marginal, and unsatisfactory--the TET applied only three--exceptional, average, and marginal. The agency’s use of three adjectives instead of the five stated in the RFP had no prejudicial impact on the evaluation. In this regard, all proposals were evaluated under the same scheme and the evaluation was not based solely on the adjectives; each of the nine subfactors had an individual weight that was multiplied by the numerical score assigned by the individual and consensus evaluations as well as supporting narratives. The maximum possible score for the operational capability factor was 78 points and the three adjectives represented various point ranges--exceptional (78-57), average (56‑29), and marginal (less than 29). TAR, Tab H; MAR, Tab K. To the extent that a greater number of adjectives would operate to provide more precise differentiation among proposals, the numerical scoring of the proposals provided that differentiation. With a score of 66 points, LB&B’s proposal was considered to be mid-exceptional, and the protesters’ scores placed them in the mid-average range. TAR at 11; MAR at 9. Regardless of the adjectives applied, the relative standing of the offerors’ proposals would remain the same, with LB&B’s proposal rated significantly higher than either of the protester’s. We note, moreover, that the source selection was not merely based on the adjectival or numerical ratings; the SSA specifically considered the narrative comments in the consensus evaluations and weighed the advantages of various aspects of LB&B’s proposal over the others. We conclude that the agency’s failure to use all five of the adjectives identified in the RFP was unobjectionable. (Trajen, Inc.; Maytag Aircraft Corporation, B-296334; B-296334.2; B-296334.3; B-296334.4, July 29, 2005) (pdf)


Where selection officials reasonably regard proposals as being essentially equal technically, price can be a determining factor in making an award, notwithstanding that the evaluation criteria assigned price less importance than technical factors. Language Serv. Assocs., Inc. , supra , at 4. Here, both proposals received overall ratings of excellent, and the contracting officer concluded that any slight difference in quality did not warrant paying the price premium associated with the protesters proposal. Given that the record supports the reasonableness of the contracting officers findings, we see no basis to object to selection of CMS-Radissons equally-rated, lower-priced proposal. (Marriott Downtown, B-294594, November 8, 2004) (pdf)


Dismas has provided, and we see, no basis to question the reasonableness of the agency’s selection of Bannum for award. As Dismas contends, past performance was the most important evaluation factor, and we think that the importance of the factor is reasonably reflected in the agency’s assignment of 325 points to the past performance factor and only 225 points for each of the remaining factors. Further, despite Dismas’s 30-point advantage under the past performance factor, the record shows that, overall, the Dismas technical proposal was scored only 5 percent higher than Bannum’s overall technical proposal (considering past performance, technical and management scores), as Dismas’s proposal received 75 percent of the available 775 technical points, and Bannum’s proposal received 70 percent of those points. Most important, however, is that, as stated above, point scores and adjectival ratings are only guides to assist in the evaluation of proposals and selection for award; they do not mandate automatic selection of a particular proposal. The question ultimately is whether the record supports the agency’s conclusions regarding the relative merits of the proposals. SDS Int’l, Inc., B-291183.4, B-291183.5, Apr. 28, 2003, 2003 CPD ¶ 127 at 9. (Dismas Charities, Inc., B-289513.3, March 26, 2004) (pdf)


D.N. first complains that the Army’s “scoring methodology”--that is, the color rating scheme--bears no rational relation to determining which proposal was most advantageous to the government. However, our review of the record reveals that the rating definitions used by the Army directly correlate to the stated evaluation criteria. For example, the blue and purple ratings are defined for past performance to consider experience with “similar work,” are defined for the help desk model to consider evaluation elements such as “service levels . . . answer call, on-site support, field dispatch . . .[etc.],” and are defined for contractor experience to consider contractor qualifications; these definitions reflect the same or similar language in the RFP. The evaluation ratings also distinguish the relative merits of proposals in that, for example, a blue (exceptional) rating is warranted for a “high probability of successful performance,” and a purple (acceptable) rating is warranted when there are “no significant doubts” as to successful performance. AR, Tab E, Technical Proposal Evaluation Worksheet, at 2, 4, 8. Although D.N. objects to the subjective nature of the evaluation scheme, we find the scheme not only consistent with the evaluation criteria, but also consistent with the Federal Acquisition Regulation (FAR) mandate in a negotiated procurement to qualitatively assess proposals, see FAR § 15.305(a), which implicitly requires some level of subjectivity. See TESCO, B‑271756, June 24, 1996, 96-1 CPD ¶ 284 at 2 (“where technical proposals are sought and technical evaluation criteria are used to enable the agency to make comparative judgments about the relative merits of competing proposals, offerors are on notice that qualitative distinctions will be made under the various evaluation factors”).  (D.N. American, Inc., B-292557, September 25, 2003)  (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
CE Support Services JV, B-406542.2, Sep 28, 2012  (pdf)  
Hi-Tec Systems, Inc., B-402590; B-402590.2, June 7, 2010  (pdf)  
Fintrac, Inc., B-311462.2; B-311462.3, October 14, 2008  (pdf)  
The MIL Corporation, B-297508; B-297508.2, January 26, 2006 (pdf)  
Cherry Road Technologies; Electronic Data Systems Corporation, B-296915; B-296915.2; B-296915.3; B-296915.4; B-296915.5, October 24, 2005 (pdf)  
IAP World Services, Inc., November 1, 2005 (pdf)  
Trajen, Inc.; Maytag Aircraft Corporation, B-296334; B-296334.2; B-296334.3; B-296334.4, July 29, 2005 (pdf)  
Marriott Downtown, B-294594, November 8, 2004 (pdf)  
Dismas Charities, Inc., B-289513.3, March 26, 2004 (pdf)  
D.N. American, Inc., B-292557, September 25, 2003  (pdf)  

U. S. Court of Federal Claims - Key Excerpts

Plaintiff contends that the Corps’s evaluation of non-price factors was fundamentally flawed because it did not follow the Evaluation Plan, AR Tab 6 at 542-551. In particular, plaintiff noted that the Evaluation Plan directed that the Technical Evaluation Team (the “TET”) “will be comprised of” three listed individuals, two civil engineers and one civil engineer-in-training and two listed alternates, both civil engineer technicians. During the evaluation some of these members listed were shifted to the Price Evaluation Team in order to address an issue with the Independent Government Estimate. AR Tab 31 at 1026. The two participating members of the TET were Richard Dylan Davis, one of the originally listed civil engineers, and Elizabeth Smock, one of the civil engineer technicians originally listed as an alternate. See AR Tab 6 at 542. The Evaluation Plan, however, was an internal document and marked “Procurement Sensitive” and “FOR OFFICIAL USE ONLY” at the bottom of each page. See id. at 542- 551. Internal agency documents that are not distributed as part of a solicitation do not themselves confer rights to potential offerors. See Lincoln Servs. Ltd. v. United States, 678 F.2d 157, 163-166 (Ct. Cl. 1982); see also In re Delta Dental of California, B-296307, 2005 C.P.D. ¶ 152, 2005 WL 1994327 (GAO Jul. 28, 2005); In re DTH Mgmt. JV, B-283239, 99-2 C.P.D. ¶ 68, 1999 WL 828064 (GAO Oct. 6, 1999). During argument plaintiff conceded that the Evaluation Plan was not distributed to potential offerors as part of the Solicitation, that plaintiff did not see the Evaluation Plan until the filing of the administrative record under seal, and that the Evaluation Plan was not incorporated into the Solicitation. The Evaluation Plan was an internal guide to assist the Corps in organizing the Solicitation, and the AR reflects that the SSD was prepared in accordance to the terms of the Solicitation. See AR Tab 31 at 1024-30.  (Manson Construction Co., v. U. S. and Great Lakes Dredge & Dock Co., LLC,  No. 07-694C, Filed October 19, 2007) (pdf)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
Manson Construction Co., v. U. S. and Great Lakes Dredge & Dock Co., LLC,  No. 07-694C, Filed October 19, 2007 (pdf)  
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