Court Rejects Conclusory Evaluation in Federal Supply Schedule Procurement

Procuring agencies enjoy considerable discretion when evaluating proposals, assigning strengths, and determining best value. In streamlined acquisitions, such as orders and blanket purchase agreements (BPAs) under the Federal Supply Schedule (FSS) program, agencies sometimes assume that their discretion is essentially unbounded. A new protest decision from the Court of Federal Claims shows that this is not so.

The Procurement

In Eleit Technology, Inc. v. United States, the U.S. Army conducted a single-award BPA competition under the FSS procedures of Federal Acquisition Regulation (FAR) Subpart 8.4. The procurement sought logistics services for technical publication life cycle management. The solicitation called for a best value tradeoff procurement with two evaluation factors: technical and price.

Five companies submitted quotations, all of which received a technical rating of merely “Acceptable.” Three of the five quoters were assessed technical weaknesses. For the awardee (LogiCore) and the eventual protester (ELEIT), the Army found that each quotation met the critical requirements, but had no strengths or weaknesses. As between these two quotations, the Army found no advantages or distinguishing features that would warrant paying ELEIT’s higher price. Therefore, the Army awarded the BPA to LogiCore on the basis of its lower price.

The Arguments

ELEIT took its protest straight to the Court of Federal Claims. It argued that the Army failed to distinguish between distinguishable quotations, arbitrarily deemed it and LogiCore to be equally “Acceptable,” and thereby irrationally made the choice between them based solely on price. The protester also argued that the awardee’s experience demonstration—part of the technical factor—was based on experience older than the solicitation’s recency restrictions permitted, which should have resulted in a weakness or at least been treated as an adverse distinguishing feature.

The Army countered that it was not required to document why it did not find any strengths in any quotation. It argued it was not required to document any qualitative comparison between ELEIT and LogiCore beyond its finding that there were no meaningful technical differences between them—or at least none worth paying a premium for. The Army also contended that, under FAR Subpart 8.4 procedures applicable to this FSS procurement, its documentation duties were minimal and it sufficiently satisfied them.

The Court’s Resolution

The Court rejected the Army’s position. The Court recognized that the evaluators documented flaws in three quotations with respect to critical requirements, but it found no evidence that the Army attempted to favorably differentiate quotations from each other or assess anything beyond mere technical acceptability. In the case of the awardee and protester, the Court found no evaluation consideration beyond a pronouncement that each met the requirements and had no strengths or weaknesses. The Court acknowledged that documentation requirements in FSS procurements are forgiving, but reminded the agency that even FSS procurements require enough documentation to allow a court to review the rationality of the decision-making. The Court also agreed with the protester that the awardee’s technical quotation improperly relied on experience outside the solicitation’s five-year recency window, which the evaluators failed to appreciate.

The government argued that it did document its decision-making. The evaluators, for example, contemporaneously wrote for each of the five quotations that they “could not find a particular aspect of the submission that either has merit or exceeds specified capability requirements in a way that will be advantageous to the government during BPA order performance.” The Court held that these repeated words were insufficient as they “merely restate the evaluation criteria and rating descriptions contained in the RFQ.” The Court stressed that such conclusory assertions “do not provide a rational connection between each quotation, the critical PWS paragraphs, and the assignment of a technical rating sufficient to satisfy the [statutory] standard of review.”

The Court found this dearth of qualitative comparison of the awardee’s and protester’s quotations and the improper consideration of the awardee’s stale experience prejudiced the protester. The Court found that, under a documented and rational evaluation and comparison, there was a substantial chance that the protester might have been awarded the BPA, notwithstanding its higher price. The Court then granted judgment in favor of the protester and enjoined the award.

Takeaways

• It is generally difficult to prevail on a “missing strengths” protest ground, given the broad discretion agencies enjoy. But an agency’s discretion is not unlimited. When a procurement contemplates a qualitative comparison of proposals, an agency is not permitted to rely on conclusory assertions and treat meaningfully distinguishable proposals as interchangeably merely acceptable. Agencies similarly are not permitted to slap the highest possible ratings on all proposals and just deem them interchangeably superlative. We have previously discussed the need to look behind adjectival ratings and distinguish the underlying merits of the competing proposals.
• This decision is the latest in a series of protest decisions from the Court (some of which are quoted in this decision) warning agencies against merely “dialing it in” on FSS procurements. This is a salutary warning, particularly as the government looks to channel an increasing volume of procurements through the FSS program. The FSS’s more relaxed rules are forgiving, but they do not absolve an agency from documenting its decision-making process in enough detail to survive judicial review.
• At least at the Court, rote statements that the evaluators looked at everything and did not see a strength, or the source selection authority did not see anything that merited a premium, do not constitute adequate documentation of a rational evaluation and source selection, even in FSS procurements.
• This decision will also be of interest to companies dissatisfied with what appears to be a growing lack of transparency in many FSS competitions. Because formal debriefings are not required in FSS-based procurements, agencies often provide “brief explanations” of the award decision that are more “brief” than they are “explanations.” Although this protest decision does not address it, one suspects that ELEIT’s post‑award “brief explanation” told it little more than that it and the awardee were both “Acceptable” and the awardee won because it was less expensive. When agencies hide the ball in debriefings and brief explanations, they often increase the likelihood of a protest. How can a frustrated offeror file a bid protest with such little information? This decision offers the roadmap. Lack of transparency is also increasingly driving protesters to go directly to the Court rather than the Government Accountability Office, where the procurement record under review will be much more limited and the degree of deference to agencies is often higher than at the Court.