What exactly is a pre-award survey?

A reader raised the following topic: Before awarding a new contract, a contracting agency may conduct a pre-award survey on the company tentatively selected for the award. How does the pre-award survey process relate to the technical evaluations that are done on the competing proposals? What are the rules for conducting these surveys? May an agency use information from the pre-award survey to re-evaluate a proposal against a solicitation's technical evaluation criteria?

Prior to awarding any government contract, the contracting officer must determine that the prospective awardee is a responsible firm.

A responsible company must convince the government that it has the financial capacity, organization, experience, integrity, business ethics and other attributes expected of a government contractor.

If the information on hand is adequate for this determination, there is no need for a pre-award survey.

However, when the readily available information is insufficient for a determination, the contracting officer may request a pre-award survey. [See Federal Acquisition Regulation 9.106.]

The contracting officer has considerable discretion in setting the scope and procedures for a particular pre-award survey. [See American Systems Corp., 68 Comp. Gen. 475, 89-1 CPD 537 (1989), in which it was ruled that the government's pre-award survey team acted reasonably in limiting a protester to a short presentation concerning its corporate capabilities.]

The contracting officer may decide to discuss pre-award survey information with an offeror before making a responsibility determination. [See FAR 9.105-3.]

However, the contracting officer is not required to give an offeror any opportunity to explain or otherwise defend against the survey.

Moreover, the offeror need not be advised of the determination in advance of the award. [See Oertzen & Co., B-228537, Feb. 17, 1988, 88-1 CPD 158.]

In most cases, the pre-award survey process is distinctly separate from the technical evaluation process.

During technical evaluations, each offeror's proposal is rated qualitatively against specific criteria identified in the solicitation, and the results are used in the selection of an offeror.

In contrast, the pre-award survey is used to answer the single question of whether a selected offeror is a responsible firm.

In practice, however, the distinction between technical evaluations and pre-award surveys often has gotten muddied. This confusion has been especially pervasive when a solicitation's technical evaluation factors have included binary, pass/fail criteria.

Protest Sustained

For example, in the case of Data Preparation Inc. [B-233569, March 24, 1989, 89-1 CPD 300], the General Accounting Office sustained a protest on the grounds that the contracting agency had failed to conduct meaningful discussions with the protester regarding its proposed staffing levels.

This happened even though the agency characterized its decision as a non-responsibility determination based on a pre-award survey.

According to GAO, the agency's rejection of the protester's offer was more properly seen as a determination that the company's proposal was technically unacceptable.

Because the agency retained the offeror's proposal in the competitive range, it was obligated to discuss all proposal deficiencies, including the staffing issue, with the protester. [Compare with TAAS-Israel Industries Inc., B-251789.3, Jan. 14, 1994, 94-1 CPD 197, in which it was ruled that an agency's determination, based on information acquired during a pre-award survey, that an offeror lacked the understanding and capability to implement its proposed approach for meeting the contract requirements was a non-responsibility determination, not a revised technical evaluation.]

Using Pre-Award Information

Indeed, it has become quite common for agencies to use information obtained through a pre-award survey in the qualitative evaluations of proposals against a solicitation's selection criteria.

In the case of AmClyde Engineered Products Co. [B-282271, June 21, 1999], for example, GAO determined that an agency had not misused the pre-award survey process when it employed information from the survey in ascertaining that an offeror's proposal failed to comply with a material term of the solicitation.

In fact, GAO has ruled that an agency's failure to consider information learned from a pre-award survey as part of its evaluations under a solicitation's evaluation criteria may invalidate the agency's decision in some cases.

In the case of Continental Maritime of San Diego Inc. [B-249858.2, Feb. 11, 1993, 93-1 CPD 230], GAO sustained a protest because the procuring agency had failed to fully consider information obtained during a pre-award survey.

Because the solicitation included responsibility-type technical evaluation factors concerning the offerors' ability to perform the contract, and the pre-award survey developed information related to those factors, the agency was required to consider the information in its evaluations.

As seen in the foregoing cases, when the evaluation process and the pre-award survey and responsibility determination process are blurred together, it can be confusing for both offerors and government contracting officials.

Because the rules applicable to each process are so different, it is important for agencies to be as clear as possible in this matter.

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. This column discusses legal topics of general interest only and is not intended to provide legal advice. Should you have a specific question or legal problem, consult an attorney.