How much documentation is needed to back a contract award?

A government official raised the following issue: When our agency conducts a competitive acquisition the contracting office typically requires those involved to keep fairly detailed records usually in a prescribed format. Some of us think that the procurement process could be streamlined if we didn't take so much time to document the process. How much record keeping is really required to support a government contract award decision? What would be the consequences if less paperwork was kept?

In general an agency is required to document its evaluations of competing offers and the basis on which the contract award decision is made as a part of each source-selection decision. This contemporaneous record should be maintained as a permanent part of the contract file. Furthermore in the event of a bid protest against the award decision this record will be critical to the government's defense.

The General Accounting Office has discussed the importance of the contemporaneous record as follows: "In reviewing protests against allegedly improper evaluations it is not our role to re-evaluate proposals. Rather GAO examines the record to determine whether the agency's judgment was reasonable and in accord with the request for proposal's stated evaluation criteria. In order for us to review an agency's selection determination an agency must have adequate documentation to support its selection decision. While adjectival ratings and point scores are useful as guides to decision-making they generally are not controlling but rather must be supported by documentation of the relative differences between proposals their weaknesses and risks and the basis and reasons for the selection decision."

Engineering & Computation Inc. B-261658 Oct. 16 1995 95-2 CPD 176 (citations omitted).In a number of cases GAO has sustained bid protests because the contemporaneous record was insufficient to support the summary conclusions on which the contract award decision was based. In the Engineering & Computation case for example GAO sustained a protest against a contract award decision that was premised in part on concerns over supposed risk in the protester's proposal because the government's contemporaneous record discussed the supposed risk only in general and conclusive terms.

Similarly in Redstone Technical Services B-259222 March 17 1995 95-1 CPD 181 GAO sustained a protest because the source-selection decision was inadequately documented. According to GAO a contracting officer's "cost/technical trade-off decisions resulting in awards to higher technically rated (based on adjectival ratings) significantly higher evaluated cost offerors are unreasonable where the contracting officer mechanically applied the solicitations' evaluation methodology and the purported reasons for his decisions are not supported by the contemporaneous evaluation and source-selection documentation."Also of interest in that case GAO rejected the agency's attempts to bolster the record after the protest had been filed. According to the decision the agency suggested in its report on the protests that concerns over the protester's ability to recruit and retain personnel were factors in the award decision. However GAO found that these supposed concerns were not expressed in the contemporaneous record and the agency's late expression of these ideas was unreliable.

Even when the technical evaluation involves point-scoring of the offers the agency's contemporaneous record must include sufficient narrative documentation to establish the validity of the point scores. Thus in S&M Property Management B-243051 June 28 1991 91-1 CPD 615 GAO sustained a protest because GAO was "unable to determine from the record that the agency's evaluation of the protester's proposal and its exclusion from the competitive range were reasonable as the record includes only technical point scores and lacks contemporaneous evaluation documentation including narratives listing the strengths weaknesses and risks of the protester's proposal which would support the technical scores received by the protester."

As seen in the foregoing and many similar precedents it is clear that agencies must include as part of the official record sufficient documentation to show how each offer was evaluated and to demonstrate that those evaluations were made in accordance with the evaluation criteria announced in the solicitation. While streamlining the paperwork may be a worthy goal up to a point agencies should not get so carried away in that regard as to undermine their ability to show that their decisions are reasonable.

Peckinpaugh is a member of the government contracts section of the law firm of Winston & Strawn Washington D.C. This column addresses legal topics that arise in government acquisition and management of ADP resources. Readers are encouraged to submit topics by e-mail to carl@carl.com or by voice-mail to (703) 876-5151 extension 2965. This column discusses legal topics of general interest only and is not intended to provide legal advice.