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Performance Risk is Instrinsic to Stated Evaluation Factors

Writer's picture: R.D. Lieberman,ConsultantR.D. Lieberman,Consultant

In a recent protest, the Government Accountability Office (“GAO”) held that although performance risk was not specifically listed as an evaluation criterion, an agency may always consider risk that is intrinsic to the stated evaluation factors. South Dade A/C and Refrig., B-421406, April 25, 2023. The protester’s assertion that the agency used risk as an unstated evaluation factor was dismissed by the GAO.


South Dade submitted a proposal for a Blanket Purchase Agreement (“BPA”) under a General Services Administration (“GSA”) solicitation for facilities engineering, operations and related services at 14 locations in Alabama. The Solicitation contemplated the establishment of one BPA under GSA’s Multiple Award Schedule for Facilities and Maintenance repair, in accordance with Federal Acquisition Regulation (“FAR”) subpart 8.4.


The solicitation provided for a best value decision, and the following non-price factors and their components were listed in descending order of importance:


1. Management Plan

a. Management approach

i. Staffing plan

ii. Monthly progress and communications plan

iii. Quality control plan

b. Technical Approach

i. Preventive/predictive maintenance

ii. National Computerized Maintenance Mgt. System (“NCMMS”) usage

iii. Data management plan

iv. Energy and water management approach

v. Technical program

vi. Property and project support plan

vii. Elevator support plan


In determining acceptability, the agency defined “unacceptable” as


The contractor is unlikely to meet some or all of the requirements of the BPA. An’unacceptable’ quote cannot be awarded. The overall quality of the quote is not acceptable, there is a limited probability of success and a high level of overall risk to the Government is recognized.


The agency evaluated South Dade’s quote and concluded that it failed to meet solicitation requirements for four elements:

· Staffing plan with six unfavorable aspects

· Quality control plan with four unfavorable aspects

· NCMMS usage and data management plan with two unfavorable aspects

· Service request and administrative support plan with five unfavorable aspects

As a result of the quote’s failure to meet these requirements, South Dade was rated unacceptable under the management plan factor and unacceptable overall under the technical factor. South Dade was not considered for award.


South Dade’s protested that GSA had used unstated evaluation criteria, namely finding risk even though risk was not identified as an evaluation factor.


GAO made short work of this allegation, noting that there was no legal basis for it. “[E]ven when performance risk is not specifically listed in the solicitation as an evaluation criterion, an agency may always consider risk intrinsic to the stated evaluation factors, that is, risk that arises from the vendor’s proposed approach or demonstrated lack of understanding.” The GAO dismissed this aspect of the protest.


Takeaway. Remember that an agency may always consider risk as an intrinsic part of its evaluation, even if not specifically stated in the solicitation. In this procurement, the risk issue was addressed in the agency’s internal definition, but GAO made it clear that it can always be considered.


For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.



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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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