Guiding principles for government evaluators

Six guiding principles for lowering the temperature in evaluation rooms

January 4, 2018
by Paul Emanuelli

From the December 2017 print edition

Paul Emanuelli is the general council of the Procurement Law office. Paul can be reached at [email protected]

Whether it’s a formal bid protest, a public audit review or a newsreel report, government evaluators often find themselves under a spotlight of scrutiny over their evaluation and award decisions. Given the glare of second-guessing that follows the public tendering process, this article offers six guiding principles for lowering the temperature in evaluation rooms.

No volunteers: In almost all cases, evaluation groups are made up of individuals who are moonlighted from their day jobs and assigned to evaluation teams; however, notwithstanding this double duty, evaluators don’t get a free pass on meeting fairness standards. Claiming, “We did our best with limited resources,” is not an adequate defense for failing to meet your due process duties. Evaluators need to set aside sufficient time to independently review, evaluate and score each proposal. They also need to prioritize their participation in group-evaluation sessions since no-shows are a no-go that cause rescheduling delays or trigger the need to remove evaluators from the team.

No free styling: Defending a legal challenge is no substitute for doing things properly the first time. The evaluation process is not a freestyle competition or an opportunity to second-guess established evaluation rules and criteria. Embarking on procedural deviations and employing hidden criteria can result in re-evaluation orders or the nullification of a contract award. Evaluators should therefore take the time to properly review the evaluation rules and criteria and then stick to the script.

No conflicts or bias: Conflicts of interest and bias are bad news for the defensibility of an evaluation. Evaluators should have no personal or financial interest in the result. Furthermore, while expert evaluators may come to the table with past knowledge of the various suppliers vying for the contract award, they should also come to the evaluation process with an open mind regarding the merits of each competing proposal. Potential evaluators who are unable to meet these impartiality standards should remove themselves from an evaluation to avoid tainting the integrity of the process.

No records means no defense: Keeping inadequate records can result in re-evaluation orders and voided contracts. The days of jotting down cryptic shorthand on sticky notes or showing up to evaluation meetings with incomplete work and hoping that someone else will prepare a consolidated evaluation record are over. Evaluators are not anonymous in the public procurement process. Team members are accountable for maintaining their own notes and scores and responsible for recording why they made any changes to their scores during group scoring sessions.

Peer review, not peer pressure: Group-scoring sessions should not be a forum for fudging results or pressuring evaluators into changing their scores. In fact, emerging enhanced consensus scoring procedures now typically include detailed protocols for ensuring that each group member exercises independent judgment as part of the evaluation. While group-scoring sessions should enable peer review and discussion, each evaluator is a potential witness in a legal challenge and should therefore exercise unfettered judgment and be ready to stand behind his or her individual score, even under cross-examination.

No executive privilege: No one involved in a government evaluation decision is above the law. When it comes to protecting the integrity of the tendering process, there is no executive privilege. This means that senior officials cannot simultaneously delegate responsibility for the evaluation process and then reserve the right to arbitrarily second-guess and override an outcome they disagree with. Senior officials should therefore either formally delegate the power to make evaluation and award decisions or they should be prepared to actively participate according to the same due process standards that apply to everyone else.

Future considerations: While your institution may have a long track record of taking liberties with the due process of its evaluation decisions and not being challenged, you should never confuse poor but untested past practice with proper practice. In the face of a legal challenge, denial of the rules is not a winning defense. When it comes to protecting the integrity of the evaluation process, it’s never too late to rectify your procedures to establish defensible practices.

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