Every game has rules. A game without rules is nothing more than a confusing activity prone to exploitation and chaos. Some games have general rules that apply to the overall game, and specific rules that are refined to apply to certain situations. Using golf as an example, “the rules of golf” apply generally to any round of golf, but some courses will have local rules that apply only to tournaments played at that venue. The government contracting game is no different, as it has an overall set of rules in place to keep the process structured, but gives agencies flexibility to tailor a specific procurement to their needs. The Federal Acquisition Regulation (FAR) and its supplements cover the general principles governing the government contracting system, and those general principles are further refined for specific procurements by the terms of each individual solicitation.
But once the rules of a specific procurement are set by the terms of a solicitation, an agency cannot change the rules on the fly. This means that an agency cannot hold offerors to standards not contemplated by the terms of a solicitation. This principle was demonstrated in a recent protest decision published by the Government Accountability Office (GAO), EFS Ebrex SARL, B-416076.
In EFS Ebrex, the protester challenged the award decision and evaluation made by the Defense Logistics Agency (DLA) in a procurement to deliver food and non-food items to various military customers overseas. The solicitation established that a single award would be made on a best-value tradeoff basis according to six non-price evaluation factors (including price). One of the non-price evaluation factors was for an offeror’s “experience,” with the solicitation informing offerors that the evaluation under this factor would consider “those aspects of an offeror’s contract history which provide the most confidence that the offeror will satisfy the current procurement. Those aspects of relevancy include experience performing deliveries as a full line food service distributor, dollar value, and number of customers.”
However, the DLA created a Source Selection Plan (SSP) that was not disclosed to the offerors. The SSP established an adjectival rating system and described specific criteria supplementing the evaluation language provided in the solicitation. Under the “experience factor”, this undisclosed SSP provided that an offeror could not receive a rating of acceptable or higher unless it provided evidence as a full-line food service distributor on contracts that collectively met at least 80% of the expected dollar value of the solicitation. Again, this apparent requirement was not disclosed to offerors in the solicitation.
The DLA assigned the protester with a rating below acceptable under the Experience factor, noting that it did not provide full-line food service contracts that met at least 80% of the value of the solicitation. Ultimately, the DLA selected a higher-priced offeror for award, in part due to the protester receiving a rating of less than acceptable in the “experience factor”. The protester challenged this aspect of the DLA’s evaluation, arguing that the DLA changed the rules in the middle of the procurement, requiring the protester to meet a standard that was not stated in the terms of the solicitation. The GAO agreed and sustained the protest.
In its decision, the GAO noted that agencies are not necessarily bound by the specific terms of a solicitation, and may properly apply evaluation considerations not specifically expressed in the solicitation. However, those considerations must be reasonable and logically encompassed within the stated terms, so that offerors could reasonably expect such a consideration as part of the evaluation process. Agencies may not go so far beyond what is stated in the solicitation terms that offerors would have no reason to expect such a consideration to be included in the evaluation.
In this case, the GAO found that the requirement to demonstrate previous experience on contracts with a value of at least 80% of the expected value of the solicitation was unreasonably applied, as offerors had no reason to expect such a threshold would be relevant or preclude a rating of acceptable or above. As a result, the GAO found that the DLA improperly used undisclosed evaluation factors in its evaluation and source selection decision, and thus sustained the protest.
The EFS Ebrex case provides a good example of an agency changing the rules of a procurement by applying evaluation criteria not stated in the applicable solicitation. This “moving of the goalposts” violates the general rules of government contracting and will not be upheld if challenged in a bid protest.
If you have questions about this or any other Government Contracts matter, please contact me at email@example.com.
ABOUT BRYAN KING
Bryan King focuses his practice on federal contracting matters, including handling all aspects of bid protests and appeals. He has represented numerous government contractors before the U.S. Court of Federal Claims, Government Accountability Office (GAO), Small Business Administration (SBA) Office of Hearings and appeals, the Civilian and Armed Services Boards of Contract Appeals, and other government agencies on procurement related issues. Click here to learn more about Bryan and his practice.
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