ConstructionPro Week, Volume: 2 - Issue: 47 - 11/22/2013

Are Owners Using Undisclosed Technical Evaluation Criteria?

By Bruce Jervis


The competitive negotiation process is used with increasing frequency in the public procurement of construction contracts. A request for proposals stipulates technical considerations important to the project owner. Each offeror’s technical rating is balanced against the offered price to determine the most advantageous proposal.


Competitive negotiation provides public project owners with more flexibility than sealed bidding. Proponents of the process say it enables owners to obtain the best value for the taxpayers. But along with that flexibility come greater subjectivity and less accountability. The most insidious aspect of competitive negotiation is the use of undisclosed technical evaluation criteria.


In a recent federal procurement, the request for proposals did not instruct offerors to list their proposed subcontractors. One offeror stated its intended subs anyway. Another offeror did not. Agency evaluators treated the listing as a technical strength and the lack of a listing as a technical weakness when awarding the contract to the higher price, technically superior offeror.


This is a classic example of the impermissible use of an undisclosed technical evaluation factor. Maybe the contract awardee really was technically superior and the agency evaluators acted in good faith. But maybe the evaluators simply favored that company and were looking for a way to move its higher priced proposal into position for contract award.


Have you seen situations where evaluators appeared to rely on factors which were never stated or disclosed in the solicitation? How does one prove this? In the recent case, the evaluators actually made written comments regarding the subcontractor listings. This does not always occur. I welcome your input.



This has been happening for decades. Those offerors who choose to abuse the system to their advantage will find a way to do it and then justify the decision. Any "extra" factor as part of a submittal should be thrown out and never used as part of the process of selection....

Could it not be considered a bribe..?
Posted by: Don Godi - Friday, November 22, 2013 1:13 PM

Worse. I've been involved in two cases where cities simply went through the motions of objectivity, then hired the firm they favored to begin with. These were architectural and planning projects, and in one case, the city selected a competitor, who then used our firm's planning scheme whole-cloth for the urban renewal project, obviously with the city's blessing. Our developer partner, wishing to do business with this jurisdiction in future, lacked the will to pursue legal remedy. We lacked either time or resources.
Posted by: Gary R. Collins, AIA - Friday, November 22, 2013 2:26 PM

maybe if people would challenge these situations of favoritism the owners would be more hesitant not to consider them more seriously if they know you have the courage to challenge them. I am sure they depend on you not challenging them.

i have had experience with a similar situation and the next time my proposal was accepted. there were no repercussions.

Posted by: pete - Friday, November 22, 2013 4:39 PM

I have had the same experience....a complicated submission that is scored with specifically identified criteria... only to have one reviewer give 100% of available credit and another 0% on specific items.... sounds makes it look like an act of congress....LOL. However, it is not realistic to expect complete objectivity. Business is still about people, trust and confidence... unless there is overt corruption. It is too late to win many projects when the RFP hits the streets without prior relationship building. We have found that in many cases, good clients take 3-5 years to develop/win. The ones that are easy, too often, don't pay, poor managers, can't be trusted and/or are not loyal.
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