We’ve heard complaints that best value awards often appear biased. The good news is most, if not all, of these awards are fairly made. The bad news is, any bias is built in. Best value is designed to be a subjective judgment in the end, if not all the way through the evaluation process.
Let’s dispose of personal bias once and for all. Public officials are presumed to be acting in good faith, without bias or prejudice. That’s the law. It takes “ irrefragable proof” to prove otherwise. In other words, it practically takes a confession of wrongdoing. But legally permissible bias is permitted by regulation.
Best value is discussed throughout FAR Part 15. FAR Subpart 15.1 describes the best value continuum and the tradeoff process. “This process permits tradeoffs” and the “perceived benefits” are dead giveaways about the subjective nature of best value awards. When you talk of continuums, tradeoffs and perceptions, you are in the land of the eye of the subjective beholder.
Even the evaluation process itself is subjective. See FAR 15.305 which describes and prescribes an “assessment” of the contractor’s ability to perform successfully. And, that’s not the only time the word assessment is used. Then there is FAR 15.308 which clearly states the source selection authority’s (SSA) decision is based on a “comparative assessment”. The award decision is a “business judgment” involving “tradeoffs”.
We’ve been concerned for years that the best value approach, although perfectly designed for the way you and I do business, is not well suited for public contracting based on strict rules and regulations. We have been concerned that best value in the public contracting context provides too much room for mischief (bias). If we had our way, all procurements would be FAR 15.101-2 lowest price technically acceptable which is almost totally objective and leaves hardly any room for bias.
But best value is here to stay and we must, for the time being, acknowledge its built in open invitation to bias. The only way to police such a system is to scrutinize the SSA’s decision empirically, analytically and thoroughly for any signs or signals of possible personal bias. For, although best value is subjective, personal bias is not countenanced if discovered.