By Bruce Jervis
The public procurement system at all levels of government has embraced “best value” contracting. The rationale is that sealed bidding, with award to the low price bidder, is inflexible and does not always provide the best deal for the public. The experience and resources of the contractor, as well as the technical strengths of its proposal, may justify a price premium.
There is a problem with best-value contracting, however. It injects a degree of subjectivity not found in sealed bidding. The challenge is to avoid favoritism or an evaluation process that produces a pre-determined result. The answer, at least in part, is to require a procuring agency to specifically identify the non-price advantages that justify the price premium.
In a recent federal procurement, agency evaluators prepared a contemporaneous report itemizing advantages – based on considerations stated in the solicitation – to justify a higher price. This document enabled the agency to withstand a protest by a disappointed offeror alleging an unfair contract decision.
The contemporaneous report prepared by the federal agency is mandated by the Federal Acquisition Regulation. Unfortunately, not all state or local statutes and regulations require such documentation. This allows at least the appearance, if not the actual practice, of favoritism. Should all procurement laws at all levels of government require documentation of non-price factors which justify the award of a higher-price contract? Your comments are welcomed.
