Posted on 1/15/2012 11:30 AM

On September 28, 2011, we reported that Judge Lynn Bush of the U.S. Court of Federal Claims (COFC) stopped a best value award because the trade-off analysis was flawed and improperly documented.  On January 9, 2012, she did it again.  This time she found disparate treatment of offerors and irrational evaluation ratings not based on evidence in the contemporaneous administrative record.

Judge Bush reiterates that the COFC defers to agency expertise when the agency assigns ratings to proposals.  However, the court is not bound by technical ratings not supported by the record made at the time the proposals are reviewed.  She states the court must review the technical ratings "not through the lens of post-hoc rationalizations, but by examining the contemporaneous record."  The court must look carefully at the documents the agency had before it when the decision was made.  Justifications offered after the fact to justify the decision are not persuasive.  The court also cannot affirm an improperly justified evaluation rating simply because there might be a rational basis the agency can come up with later.

"A tradeoff analysis based on signficantly flawed evaluation ratings is itself irrational," she says.  Because the ratings were incorrect and arbitrary, the best value award itself is flawed and must be overturned.  If the Source Selection Authority (SSA) relies on errors by the technical evaluation team, the SSA's decision is compromised.  It is possible to challenge an award when the evaluations simply don't make sense and the offerors are not treated with an even hand.

Her remedy is to set aside the award.  She points out the agency may re-procure the diplomatic security protection management services.   However, she lays down some specific guidelines as to how that reprocurement must take place.  In the redo, she plays a theme from her December opinion on which we reported.  The proper tradeoff analysis must be based on the independent judgment of the SSA.

We should emphasize a final point.  Her decision was not just based on the irrational technical evaluation ratings.  It also was based on the failure of the SSA to strictly follow the weighting scheme for evaluation factors which was set forth in the solicitation.  We've emphasized this many times in these blogs.  The meat of a solicitation is in its evaluation factors and the SSA is obliged to follow them strictly in reaching the decision to award. 




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