COURT SAYS DON'T CHANGE EVALUATION CRITERIA MIDSTREAM

The Court of Federal Claims (COFC) recently has reiterated that it is illegal to change evaluation criteria during the evaluation process.  In the case, the agency made past performance at a satisfactory level an eligibility for award requirement. The offerors were not on notice that so-called critical elements would be evaluated in isolation and that the failure to satisfy the "critical elements" would result in immediate elimination from the competition.  An agency must disclose that a failure to satisfy a selection criterion or subcriterion will result in automatic rejection, says the COFC.

The COFC also noted that it could not discern the "mysterious" process the agency used to evaluate the contractors.  Although the COFC will not "wade into the minutiae" of the procurement process and will defer to the agency's rational reasoning, deference to the agency is inappropriate where the agency fails to provide a reasoned explanation for its decision supported by the record.  Here, all the COFC could conclude was that the decision was inconsistent with the contemporaneous record and the agency failed to provide a reasonable explanation for its decision.

Where an agency specifies an evaluation and selection process, it must follow the disclosed process.  The COFC merely determines whether the evaluation was reasonable and consistent with the stated evaluation criteria.  Past performance was not a stand alone eligibility test.  Therefore, when it became such a test, the protester was prejudiced, says the Court.

Interestingly, although Judge Damich is willing to enter a permanent injunction against the award of the contract, he withholds the judgment to permit the agency to consider taking corrective action on its own.  If the parties cannot agree, he says, he will issue an appropriate permanent injunction.

How will a contractor know if the evaluation factors were changed in the evaluation process?  A face to face debriefing question and answer period is the answer. Failing that, the only recourse is to protest.

Postscript:  GAO just sustained a protest saying the agency used an evaluation methodology inconsistent with the evaluation factors in the solicitation.

bill@spriggslawgroup.com              www.spriggslawgroup.com