By Richard D. Lieberman, Consultant and Retired Attorney
May an agency Source Selection Official rely on his/her personal knowledge in making a source selection? The answer is provided in Veterans Choice Med. Equip, LLC, B-419991, Oct. 20, 2021, which is yes, if the solicitation does not prohibit it.
Veterans Choice protested an award to Mid-Cities Home Med. Deliv. Service, LLC by the Department of Veterans Affairs (“VA”) for in-home oxygen and ventilator services in Southern California. The Solicitation stated that offerors were to provide, among other things, the contract number and dates performed for each contract reference included the experience narrative. The Solicitation provide that failure to submit the required information “may be viewed as evidence of lack of experience.” Mid-Cities submitted a single reference, which described a contract where it provided in-home oxygen services. Mid-Cities described its in-home ventilator services experience, but did not include contract number or dates of performance for the services.
In making the evaluation, the SSA rated both Veterans Choice and Mid-Cities experience as “Good,” and Veterans Choice challenged the evaluation because the proposal did not include a reference contract for home ventilator services with all required information required by the solicitation. Veterans Choice also challenged the SSA’s reliance on her personal knowledge in evaluating Mid-Cities’ proposal and in making the source selection.
During source selection the SSA contacted the Chief of Prosthetics for the VA Los Angeles Healthcare, and verified that the contractor was currently providing in-home ventilator service to 19 patients. At the time of award, the SSA had personal knowledge that the company had provided in-home ventilator services in multiple contracts over many years—knowledge gained from her role as a VA branch chief and CO in an office which manages similar procurements.
First, GAO could find nothing in the solicitation actually requiring the agency to evaluate proposals for whether the submitted contract references met the Solicitation requirements. The use of the word “may” in the Solicitation allowed the agency to consider an offeror’s proffered experience that did not conform entirely to submission requirements.
Second, the GAO explained that an agency may consider experience information known to the agency nuy not found in the firm’s proposal. The personal knowledge of the evaluation panel demonstrated to them that the company had prior experience in providing in-home ventilator services in southern California. GAO denied the protest.
Takeaway. Agencies may consider experience information that is known to evaluation personnel or the SSA, but not in the firm’s proposal. Notwithstanding this, offerors are cautioned that they should fully comply with proposal submission requirements, and not depend on the knowledge of evaluation personnel or the SSA.
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.