Posted on 9/28/2011 8:51 AM

We have written about best value awards and protests pointing with particularilty to FAR 15.308 in "Anatomy of a Successful Bid Protest".  Yesterday, Judge Bush of the Court of Federal Claims (COFC) overturned a best value contract award, permanently enjoined the award and ordered the government to cancel or amend the solicitation.  The ruling was based on a violation of FAR 15.308.  The agency failed to conduct a proper best value analysis and to document the decision.

In the words of Judge Bush:

"The source selection decision statement here is nothing more than the unsupported adoption of the SSEB report, along with a conclusory assertion that the intervenor's proposal represents the best value to the government.  The court has held that the SSEB failed to perform a proper best-value tradeoff analysis.  The court further holds that the SSA's adoption of the flawed SSEB recommendation does not show that the SSA conducted a comparative assessment of proposals, in this case a best-value determination, as required by the RFP.  Furthermore, the documentation requirements of FAR 15.308 were not satisfied by the SSA in this procurement.  In so holding, the court has essentially set forth the core of its ruling in this case, i.e., that the source selection decision in this procurement, as manifested in the SSEB report and the SSA's award decision, was fatally flawed and cannot stand."

Well said, Judge Bush.  The best value decision must:

  1. Be independently made by the SSA;
  2. Show analysis of the recommendations of the SSEB;
  3. Demonstrate a careful, in depth best-value tradeoff analysis; and
  4. Be thoroughly documented in accordance with FAR 15.308.

And, the SSEB also must perform and document a best-value analysis.

As we have pointed out before, to find out just how the government arrived at its best value decision, you must seek assistance from someone outside your firm authorized to view the source selection documents under a protective order.  We represent clients in such cases before GAO and the COFC.  Contact us if you have a best value award issue or pass this along to someone you know who may be interested.



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