What is the first thing you should do when you get a solicitation for a competitive government buy? Find the evaluation factors, read them, make sure you understand them, make sure they are fair, make sure they comply with the regulations and use them to manage your proposal effort. If they are not clear, fair or if they do not comport with the regulations, protest immediately. After 40 years of handling protests, we can assure you most problems in competitive procurements are caused by improperly articulated evaluation factors. The time to solve these problems is when the solicitation is first issued.
We are against protesting unless a regulation is violated. We also are against writing stuff people do not understand. If the evaluation factors are not written clearly and if they do not strictly follow regulatory requirements, protesting is an absolute necessity. This is probably the one situation where there is no doubt about the propriety of protesting all the way up the line. First, “protest” to the contracting officer. Write a letter (emails are legal letters) thoroughly explaining what is unclear or illegal about the evaluation factor section of the solicitation. Yes, it is illegal to fail to follow the regulation on evaluation factors. If that doesn’t work, protest to GAO. If that doesn’t work, protest to the Court of Federal Claims (COFC).
Evaluation factors are discussed In FAR Parts 12, 13, 14 and 15. All competitive procurements implicate FAR Part 15 principles, according to GAO. Part 15 has the most thorough discussion of evaluation factors. Although Parts 12, 13 and 14 have their own discussions and Parts 12 and 13 allow much more discretion as to what factors are used, Part 15 is the gospel on evaluation factors. The main point to remember is that all competitive procurements require a solicitation contain evaluation factors. They must also be written in plain English.
Recently, we saw a commercial buy competitive RFQ under FAR Part 12, using FAR Part 13 simplified procedures, which contained no evaluation factors. I was flabbergasted. How, in today’s world, with all the education about our procurement system, can this happen? FAR 12.602(b) says: “Offers shall be evaluated in accordance with the criteria contained in the solicitation.” FAR 12.602(c): “Select the offer that is most advantageous to the Government based on the factors contained in the solicitation.” FAR 12.603 mandates describing the evaluation factors in the solicitation. FAR 13.106-2 allows “broad discretion” but requires evaluation factors, nonetheless. See FAR 13.106-1(a)(2) and 13.106-2(a)(2).
If nothing else, failure to state evaluation factors is egregiously unfair. How in the world can you compete if you don’t know how you will be judged? Why would you engage in any competition without knowing the rules of the game?
We review solicitations for legal sufficiency and handle protests.
bill@spriggsconsultingservices.com