Clients and potential clients frequently come to us and complain about the low scores they’ve gotten from a Florida state agency (or the high scores their competitors got) that caused them to lose out on valuable contracts. Their first instinct is to argue that they should have gotten a higher score or their competitors should have gotten lower scores. As we often tell them, scoring issues, which are highly subjective, are the most difficult to prevail on in a bid protest. The key to a successful protest is demonstrating a concrete and specific flaw in the procurement protest that occurred as a matter of historical fact. That being said, you don’t have to take an unfair or inaccurate score lying down.
In Florida, when state agencies use best-value procurements (those using requests for proposals or invitations to negotiate) the agency is required to create a contemporaneous record of how and why it selected the awardee. § 287.057(1)(b)(4), Fla. Stat. (When a request for proposals is used “[t]he contract file shall contain documentation supporting the basis on which the award is made.”); § 287.057(1)(c)(5), Fla. Stat. (“The contract file for a vendor selected through an invitation to negotiate must contain a short plain statement that explains the basis for the selection of the vendor and that sets forth the vendor’s deliverables and price, pursuant to the contract, along with an explanation of how these deliverables and price provide the best value to the state.”).
Notwithstanding these statutory requirements, the reality is that Florida agencies will frequently rely solely on the evaluators’ scoresheets to support a boilerplate award memo, even though there is no way to tell how or why the evaluators arrived at their scores. Even when the evaluators are deposed during protests pending before the Florida Division of Administrative Hearings (“DOAH”), they are generally not able to meaningfully articulate how or why they gave the protester a “5” for one sub-factor and the awardee a “6” for that same sub-factor. Even so, it appears that no one has ever filed a protest at DOAH arguing that the agency has failed to adequately document its procurement as required by § 287.057(1), Fla. Stat. by relying solely on evaluator scoresheets.
This is a missed opportunity. The United States Government Accountability Office (“GAO”) – the federal counterpart to Florida’s DOAH – routinely sustains protest on that basis. As the GAO recently explained when it sustained the protest in Global Aerospace Corp., B-414514 (Comp. Gen. July 3, 2017): “it is a fundamental principle of government accountability that an agency be able to produce a sufficient record to allow for a meaningful review where its procurement actions are challenged. Where an agency fails to document or retain evaluation materials, it bears the risk that there may not be an adequate supporting rationale in the record for us to conclude that the agency had a reasonable basis for the source selection decision.” (internal citations omitted). Therefore, “[p]oint scores cannot be used as a substitute for adequate documentation showing the bases for the evaluation conclusions reached and source selection decision made [. . . and a] comparison of proposals based on point scores alone [is] inadequate[.]” Celta Servs., Inc., B-411835.2 (Comp. Gen. Nov. 2, 2015) (sustaining protest) (internal citations omitted).
The next time you want to challenge your scores in a Florida procurement, you should consider arguing lack of adequate documentation. Such an additional argument, which is more objective, will increase your chances of prevailing in a bid protest that involves subjective scoring issues.
Joseph M. Goldstein is the Managing Partner of the Fort Lauderdale office of Shutts & Bowen LLP, where he is a member of the Business Litigation Practice Group. Joseph also practices out of the Tallahassee office.
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