Sunday, August 5, 2012


GAO has just reiterated the rule that an agency cannot turn a best value procurement into lowest price, technically acceptable (LPTA).  Again, the source selection authority (SSA) cannot reasonably determine proposals are technically equal unless it explains this judgment fully and does so on the basis of facts in the contemporaneous record.

Despite GAO conducting a hearing to receive further explanation from the SSA on the equal rating determination, the record did not explain why the strengths identified in the higher rated technical proposal did not reflect technical superiority that should have been considered in a tradeoff analysis as contemplated in a best value procurement.  An agency's evaluation of proposals and source selection decision should be documented in sufficient detail to allow for a review of the merits of a protest.

Thus, SSA's should have protest in mind when writing up the source selection decision.  An agency which fails the documentation test "bears the risk" that its determination will be considered unsupported.  Absent such support, GAO may be unable to determine whether the agency had a reasonable basis for its determination.  In this case, the evaluation team could not agree on  a best value recommendation and there was no documentation in the record that any member of the team considered the proposals to be technically equal.

The SSA's finding that the proposals were "similar" was not enough because it was unsupported by any discussion of respective strengths and weaknesses.  GAO accords greater weight to contemporaneous evaluation and source selection material than to later explanations and arguments by the agency.

Where a solicitation calls for a best value award, the SSA's decision must be based on a comparative analysis of the technical differences of the proposals.

The GAO decision also reminds us that agencies are required to sufficiently record their judgments, including documenting the relative strengths, deficiencies, significant weakness, and risks supporting their proposal evaluations.  And they must do so "in a manner that is fair and equitable and consistent with the terms of the solicitation."

Postscript:  Don't forget the FAR prohibits trade offs in LPTA.  Trade offs are the hallmark of best value.  In our opinion, the "continuum" is illusory.  Best value really is trade offs only.  LPTA is the complete absence of trade offs.  Judge Bush agrees as we  reported in our March 22, 2012 article.  

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