A recent decision from the United States Court of Federal Claims, United International Investigative Services, Inc. v. United States, 41 Fed.Cl. 312 (1998), promises new emphasis on source selection plans. In this article, we’ll examine source selection plans, and then we’ll explain how this decision changes the focus from existing case law developed by the United States General Accounting Office (GAO).
Source selection plans are required neither by statute nor by the Federal Acquisition Regulation (FAR). However, they are commonly used for high-dollar contracts proceeding under competitive negotiated acquisitions. Typically, a source selection plan documents an evaluation group structure where separate teams are established to evaluate proposals, to conduct a comparative analysis of the competitive proposals, and then to make a source selection decision.
FAR 15.303(b) authorizes establishment of evaluation teams and acquisition plans. FAR 15.303(a) allows individuals other than the contracting officer to make the source selection decision. Under FAR 15.303(c), only contracting officers are authorized to serve as the focal point for inquiries from competing contractors, to control exchanges with offerors, and to award the contract. FAR 15.308 sets out requirements for the source selection authority’s decision, and FAR 15.101-1 provides standards for “best value” source selection decisions, i.e., when there is a tradeoff among cost or price and non-cost factors (typically, technical merit or past performance).
Some agency regulations require establishment of an evaluation group structure that is documented with a source selection plan. The best known are Appendices AA and BB of the Air Force Federal Acquisition Regulation Supplement (AFFARS). AFFARS Appendix AA requires establishment of an evaluation group structure documented with a source selection plan for Air Force contracts estimated at $500 million or more, or, for Air Force information technology acquisitions, for contracts estimated at $120 million or more. A less complex evaluation group structure is allowed under AFFARS Appendix BB for Air Force contracts over $5 million.
A typical source selection organization consists of a source selection evaluation board comprised of teams or panels to evaluate the technical proposals, the cost or price proposals, and past performance; a source selection advisory council to conduct a comparative evaluation of the proposals; and a source selection authority designated to make the selection decision. A source selection plan documents the source selection organization that is established. Likewise, a typical source selection plan sets out evaluation factors, evaluation standards, and evaluation procedures. Evaluation factors and their relative importance must be announced in the solicitation document. FAR 15.304(d). Evaluation standards need not be released with the solicitation document, although the better course, to ensure industry understanding of the best value selection decision, is to include the evaluation standards within the solicitation document.
For many years, source selection organizations separated the evaluation of technical proposals from evaluation of cost or price proposals on the supposition that technical proposal evaluation should be limited solely to technical merit and proposal risk. Recently, source selection organizations are established to include an integrated assessment of technical merit, cost or price, and proposal risk, this to enable the identification of disconnects between evaluated technical merit and proposed cost or price.
Source selection plans invariably provide for consensus evaluation of technical proposals, including identified strengths and weaknesses. Consensus evaluation is thought to promote consistent, objective evaluation and assessment of proposals. Assessments of the competing proposals are rolled-up into a presentation for the source selection advisory council, whose responsibility it is to compare the proposals, one with another.
The comparative analysis of the competing proposals is reduced to a written report or overhead presentation foils, and then this written report or presentation is submitted to the source selection official. Usually, the source selection advisory council offers a recommended source selection decision for consideration. The source selection official then makes the source selection decision.
While details of source selection plans can vary, the essential point is that source selection plans document the source selection process, and they are intended to ensure that the selection decision is reasoned and rational, more than the result of an ad hoc process.
GAO does not regard source selection plans as creating rights that may be enforced by competing contractors. Rather, GAO holds that source selection plans are nothing more than internal agency guidelines. An example is Loral Aeronutronic, B-259857.2, July 5, 1995, 95-2 CPD ¶ 213, where a protester challenged a reevaluation by a source selection advisory council on the ground that the revised rating was inconsistent with the definition of that term as it was set out in the source selection plan:
Loral’s argument in this regard ignores the distinction between the evaluation scheme (which was set forth in the RFP), and the source selection plan provided to evaluators as a guideline. Loral does not actually allege a misapplication of evaluation criteria-such as ignoring the fact that the seeker technical approach subfactor is more important than the D&V program subfactor-but contends that the SSAC’s upgrade strayed from the ratings definitions in the source selection plan. Allegations of deviations from an agency’s source selection plan do not constitute a basis for questioning the validity of an award selection. Rather, source selection plans are internal agency instructions and, as such, do not give outside parties any rights. Young Enters., Inc., B-256851.2, Aug. 11, 1994, 94-2 CPD ¶ 159 at n.4; National Steel & Shipbuilding Co., B-250305.2, Mar. 23, 1993, 93-1 CPD ¶ 260; Burnside-Ott Aviation Training Center, Inc.; Reflectone Training Sys., Inc., B-233113; B-233113.2, Feb. 15, 1989, 89-1 CPD ¶ 158; Robert E. Derecktor of Rhode Island, Inc.; Boston Shipyard Corp., B-211922, B-222922.2, Feb. 2, 1984, 84-1 CPD ¶ 140.
Id., at 9-10; See also Lear Siegler Services, Inc., B-280834, Nov. 25, 1998, at 6 (“As between these two documents [the solicitation and the source selection plan], it is the RFP-and the evaluation scheme set forth therein-that forms the compact between the agency and the offerors about how proposals will be evaluated.”); Management Resources, Inc., B-276424, June 13, 1997, 97-1 CPD ¶ 215, at 3 (“the agency is required to follow the evaluation scheme set forth in the RFP and to conduct its evaluation in a manner that will reach a rational result”); Executive Court Reporters, Inc., B-272981, Dec. 5, 1996, 96-2 CPD ¶ 227, at 7; General Atronics Corp., B-272685, Oct. 23, 1996, 96-2 CPD ¶ 157, at 3 n. 4; Executive Security & Engineering Technologies, Inc., B-270518, Mar. 15, 1996, 96-1 CPD ¶ 156, at 3 n. 3.
United International Investigative Services arose from an acquisition for court security services. This competitively negotiated acquisition proceeded under a source selection plan that provided, inter alia, for group discussions, and a consensus evaluation, among the technical evaluators. Id., 41 Fed.Cl. 412, at 314-15. A technical evaluation board of six persons had reviewed and scored proposals in June. Two months later, proposals were re-evaluated by two of the original evaluators, and the re-evaluation resulted in significant changes in proposal rankings. Id., 41 Fed.Cl. 412, at 320-21. The re-evaluation results were inconsistent with the initial group evaluation, as well as wholly contradictory, i.e., a proposed transition plan was found on re-evaluation both to exceed, and not to exceed, solicitation requirements. Id., 41 Fed. Cl. 412, at 321-22.
These changes, together with an agency price evaluation error (it turned out the award had not been made, as the agency supposed, to the offeror with the lowest evaluated price), resulted in a decision sustaining the postaward protest.
The United International Investigative Services court paid particular attention to the source selection plan:
A group discussion, as envisioned by the Technical Evaluation, could have clarified these inconsistencies. Specifically, the discussions could have been used to ventilate Mr. Guccione’s perceived concerns regarding plaintiff’s technical proposal and the TEB could have come to a consensus regarding each area of concern. The failure of Ms. Hendrick [the contract specialist] to provide an opportunity for the TEB to operate this function denied plaintiff “the impartial consideration to which it was entitled under the implied contract obligations of the government.” Arrowhead Metals, Ltd. v. United States, 8 Cl. Ct. 703, 714 (1985); see also 126 Northpoint Plaza, 34 Fed. Cl. at 112.
Defendant, however, argues that the re-evaluation resulted in a more comprehensive product than the first evaluation, and that it resulted in a far more thorough analysis of the proposals. The court finds this argument unpersuasive. There is no way of knowing how comprehensive the second process actually was because it did not include a group discussion. The group discussion, as demonstrated above, was necessary in order to ventilate the evaluators’ opinions regarding each proposal. During these discussions, evaluators could have explained their individual reasons for ascribing a score to a particular proposal. Moreover, the TEB, as a group, would then have been able to arrive at a consensus regarding that particular aspect of an offeror’s proposal.
Although minor irregularities or errors in the procurement process are not sufficient grounds to warrant judicial intrusion to overturn a procurement decision, Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996), the violation in this case was not minor. Rather, the violation described above deprived plaintiff of the opportunity to have its proposal considered fairly and honestly. Thus, the decision to have two evaluators circumvent the consensus and discussion requirements of the Technical Evaluation merits judicial intrusion.
Id., 41 Fed. Cl. 412, at 322 (emphasis added).
Under GAO case law, the reasoning supporting a decision on the protest would have been much different, since GAO would have focused on the rationale, and not on the process, i.e., GAO could have sustained the protest if it were convinced that the rationale was faulty. Given the contradictions in the re-evaluation documents, it is not much of a stretch to suppose that GAO would have sustained on this ground. But GAO would not have looked at the source selection plan. And this is the difference: United International Investigative Services recognizes that the entire procurement process, including the source selection plan, is an integral and essential part of the requirement that all proposals be afforded fair and honest consideration.
— Cy Phillips
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