THE BUILT IN BIAS OF BEST VALUE

Last year, I wrote a note about bias.  My intent was to send a message to contractors to quit complaining about biased contracting officers and evaluation  board members.  Over the years, we've also heard complaints that best value procurements, in particular, are breeding grounds for "wired" contract awards.

This subject just will not go away.  So here is another clarion call to contractors to give up on the bias argument.  Legally, it is almost impossible to win, anyway.  And the truth of the matter is best value, in its almost infinite subjectivity, builds the bias in the selection decision anyway.

The good news is that far and away most of the awards are made fairly.  But subjectivity is the name of the game.  And where there is subjectivity there is room for personal preferences.

That is not to say personal bias is rampant or condoned.  Public officials, though, are presumed to be acting in good faith, without bias or prejudice.  That says a lot.  The law says anyone who challenges a public employee on the grounds of bad faith, has an extremely heavy burden of proof.

As we've pointed out before, the subjective tradeoff process is described as part of a continuum of the best value selection process.  The regulation mentions "perceived benefits" suggesting they are seen through the eyes of the beholder, of course.  Talk of tradeoffs and perceptions lead to personal selection views.

That is not to say best value is without objectivity.  Section M evaluation criteria are extremely important in best value and that is where contractors should concentrate their efforts.  Going in, are the criteria clear and fair?  After award, were they followed?

The best value evaluation process is subjective.  The evaluation team must make an "assessment" of the contractor's ability to perform the work successfully.  The source selection decision is to be based on a "comparative assessment" using "business judgment" which involves "tradeoffs".

In our original piece, we suggested the federal government should use a more objective selection approach such as LPTA (lowest price, technically acceptable).  The problem there, of course, is that LPTA is good for grass cutting services but not sophisticated engineering services, for example.  LPTA may be fine but only if the "technically acceptable" bar is set at the proper height.

No, best value is the way you and I prefer to buy and it's good for the government as well.  Subjectivity is built in.  The bias of evaluator and decision maker assessments and judgments is built in.  Contractors should learn to live with it.

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