Interested Party. To have standing in a protest a protestor must be an interested party – an actual or prospective offeror whose direct economic interest would be affected by the award or failure to receive a contract. A protester is not an interested party where it would not be in line for contract award if its protest were sustained but another offeror would be in line for award (Easter Colorado Builders, Inc Comp. Gen. Dec. B-291332. Unless otherwise specified, protest decisions are Comptroller General decisions and we will abbreviate the reference by alluding only to the case number). The GAO established it would not sustain a protest unless the protester demonstrates a reasonable possibility of prejudice – unless the protester demonstrates that but for the agency’s actions it would have had a substantial chance for receiving the award (Bath Iron Works Corp. B-290470). Where a protester did not submit a bid because of certain testing requirements and later learned the requirements were lifted the protester was not an interested party (McRae Industries, Inc., 53 Fed. Cl. 177). The protester of a sole source award was not an interested party who did not make an effort to establish it was a qualified, responsible bidder capable of performing (Mers Investigative and Security Services, 275 F.3d 1366). But a prospective bidder who challenged an improper change to terms of a solicitation that deterred it from competing was an interested party (Ceres Environmental Services, 52 Fed. Cl. 23). A protester alleging the issuance of a task order beyond the scope of an existing contract is an interested party even where the protester is potentially incapable of performing on the task (Symetrics Industries, Inc B-289606).

Evaluating Proposals. In protests of an agency’s technical evaluation of proposals, the GAO made clear it would not reevaluate proposals but rather would examine the record to determine if the evaluation was reasonable and consistent with the evaluation criteria of the solicitation and applicable statutes and regulations (Yoosung T&S, Ltd. B-291407). A best value award was ruled improper that was based on considerations not included in the solicitation’s evaluation scheme (Tennier Indus. Inc. B-286706.2). A protest was sustained on the grounds the record contained insufficient information and analysis supporting the decision – it used an "overly mechanistic methodology" to compare proposals while failing to consider qualitative differences or ignore certain risks (Johnson Controls World Services, Inc. B-289942). Similarly, a protest of a best value award was sustained where the agency mechanically applied the solicitation evaluation methodology and the record did not establish a valid rationale for award to a higher-priced, higher technically rated proposal (Shumaker Trucking, B-290732).

Federal Supply Schedule. Under FSS, competition for task order awards are not required but if competition is held, the GAO will consider a protest. The award of a blanket purchase agreement under an FSS contract was ruled improper because the agency could not demonstrate the services to be provided were included in either the awardee’s or its subcontractors’ FSS contracts (Omniplex World Services B-291105). FSS delivery orders were invalid without considering the fact the protester offered the same services under a different schedule for a lower price – consideration of this reasonably available information was required by the FAR to ensure orders be awarded to the vendor providing the best value (e.g. the lowest overall cost) to the government (REEP, Inc. B-290665).

OMB Circular A-76. The GAO is defining agency discretion in the growing area of public versus private competitions. The GAO determined that an A-76 cost comparison was flawed because the agency failed to adequately notify commercial offers the government’s plan was to rely heavily on a category of workers typically receiving lower wages and benefits than government employees (Sodexho Management B-289605.2). A protest was sustained where the agency underestimated its in-house costs and inflated the administrative costs applied to a private sector offeror (Del-Jen, Inc. B-287273.2).

Bundling. The Small Business Act requires agencies to avoid unnecessary and unjustified bundling of contract requirements that precludes small business participation as prime contractors. An agency’s consolidation of requirements previously provided to small businesses under separate contracts was appropriate where the consolidation requirements were likely to be unsuitable for small businesses (TRS Research. B290644). Combining latrine rental services with waste removal services, each with their own NAICS code, that was generally performed by separate contractors was improper under the FAR because the agency had not shown that combining the two services was necessary to meet the government’s needs (Vantex Services Corp. B-290415).

Timeliness of Submissions. An agency properly may eliminate from the competition an offer having significant informational deficiencies (Safety-Kleen. B-290838). It was proper for an agency to accept a late bid where the bidder had hand carried the bid and it had been received at the government installation and was under government control before the scheduled bid opening (J.L. Malone & Assocs. B-290282). But a protest was denied where the agency had timely received a quote but lost it due to its own negligence where the GAO stated "while this is unfortunate…the occasional negligent loss of an offer by an agency does not entitle the firm submitting it to any relief" (Safety & Health Consulting Svcs B-290412). Increased use of electronic submissions has generated many protests. The GAO ruled that FAR 52.215-1, Competitive acquisitions, does not apply to proposals sent electronically (Sea Box B-291056) and the contractor assumes the risk of non-receipt of faxes when the agency denies receipt even when a contractor has evidence of transmission (Brickwood Construction B-290444).

Unbalanced Bids. A bid is unbalanced if it is based on prices significantly less than cost for some work and overstated in relation to cost for other work and there is a reasonable doubt the bid will result in the lowest overall cost. Acceptance of an unbalanced bid is not in itself improper for an agency may lawfully award a contract based on unbalanced pricing if it has concluded the pricing does not pose an unacceptable level of risk and the prices the agency is likely to pay are not unreasonably high (Semont Travel Inc. B-291179). No unbalanced pricing was shown to exist when the protester provided no facts to show the prices were significantly overstated and the Comptroller ruled the risk of low prices (or even below cost prices) is not the issue because the risk of loss falls on the contractor not the government (Selrice Svcs. B-286664.4).

Poor Analysis of Cost. For a cost type contract, agencies are usually required to conduct a cost realism analysis and develop a probable cost estimate based on the technical approaches. Merely comparing cost elements of each proposal without making any probable cost adjustments up or down was insufficient and justified the protest (Priority One Services B-288835). A protest was sustained where the agency had accepted, without any analysis, the awardee’s revised proposed rates which were significantly lower than its proposed initial rates, its history and its proposed ceiling rates (PADCO Inc. B-289096). Also a protest was sustained where the agency’s cost realism analysis of awardee’s staffing costs was not supported where there was no meaningful explanation in the record of the basis for accepting the awardee’s proposed reduced staffing levels (Nat’l City Bank of Indiana B-287608).

Adequate Record Documentation. An agency must provide adequate documentation of its evaluations. The source selection board’s disagreement with the agency’s evaluation was not adequately explained and hence the agency’s award was considered unreasonable (DynCorp International LLC B-289863). A protest of an A-76 competition was sustained when the record failed to demonstrate why the only commercial offeror on a public-private competition was eliminated as technically unacceptable (Consolidated Engineering Svcs. B-291345). An award to a contractor whose proposed price was 65% higher in spite of equal technical scores was sustained because the source selection board adequately detailed why the higher price was justified (KPMG Consulting B-290716)

Conflict of Interest. The protester asserted the awardee’s proposed program manager was a Naval Officer who had unfair access to proprietary information. The GAO denied the protest holding though an appearance of conflict may be grounds for sustaining an organizational conflict of interest (COI) where the alleged conflict involves an individual, actual unfair access must be proven ( Perini/Jones Joint Venture B-285206). The GAO ruled that organizational COI existed because of the work a proposed subcontractor had performed on a predecessor contract (e.g. obtained protester’s confidential information used to improve its proposal) and the agency had failed to consider the COI and establish a mitigation plan (Ktech Corp. B-285330). The GAO ruled the incumbent did not have an organizational COI because the government, not the incumbent, drafted the statement of work and any unfair advantage was mitigated by providing all offerors "as built " drawings (M&W Construction B-288649). In its reconsideration of an earlier decision, the GAO admitted an organizational COI existed in having the same employees and consultants both draft the solicitation and help prepare the government’s in-house management plan for an A-76 competition. However, since the practice was so widespread, resulting in cancellation of numerous A-76 competitions, the GAO made the decision on a prospective basis only (Dept. of the Navy – Reconsideration B-286194).

Discussions. The FAR requires that COs discuss with each offeror being considered for award significant weaknesses, deficiencies and other aspects of its proposal that could be altered or explained to enhance the proposal’s potential for award (FAR 15.306). Prior year decisions ruled there is no requirement that all areas of a proposal be discussed but only significant weaknesses be discussed. The Court upheld the agency’s decision not to discuss the protester’s cost proposal since it was not considered inadequate and though it always must be evaluated, it was considered the least significant evaluation factor leading the Court to rule that cost is not always a material factor and hence need not be automatically discussed (JWK Internatonal 279 F3d. 985). The GAO established that technical leveling is no longer specifically prohibited stating that an agency’s questions intended to provide an offeror the opportunity to correct aspects of its proposal that may not have met requirements are now "totally appropriate" (Imagine One Technology& Management B-289334). Though a defect in a cost proposal was not revealed until best and final offers were submitted, the agency still treated offerors unequally by holding discussions with the awardee on the same issue but not with the protester earlier in the process (Metcalf Construction 53 Fed. Cl. 617). An agency is not required to conduct discussions in a FSS procurement even if the solicitation stated discussions were contemplated (Avalon Integrated Svcs B-290185).

Mistakes. A request to correct a bid before award is made is allowable only when there is (1) clear and convincing evidence of the mistake and the intended bid and (2) if the correction would result in displacing one or more of the lower bids the mistake must be ascertainable from the bid invitation and the bid itself (Mideastern Builders B-290717). A contractor seeking a post award reformation of the contract on the grounds a unilateral mistake was made must provide convincing evidence in five elements: (1) a mistake in fact occurred before contract award (2) the mistake was a clear-cut clerical or mathematical error or a misreading of the specification and not a judgmental error (3) before award the government knew or should have known a mistake had been made and should have requested a bid verification (4) the government did not request bid verification or its request was inadequate and (5) proof of the intended bid is established (Holmes & Narver Constructors ASBCA 52439). The contractor’s bid included a subcontract price that mistakenly did not include certain items. In its attempt to obtain a contract price increase for the mistake the government asserted it was not a mistake but a judgmental error. The Board disagreed stating though it was not a clerical or math error it was the type of inadvertent error that was correctable. Nonetheless the price was not adjusted because the contractor failed to provide clear and convincing evidence of the mistake and of its intended bid (Will H Hall & Son, 54 Fed Cl. 436).

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