To have standing to protest a procurement, a protester must be an interested party – an actual or prospective offeror whose direct economic interest would be affected by the award or failure to obtain the award (HWA, Inc. v US, 78Fed. Cl 685). A protester is an interested party where there is a reasonable chance its proposal would be in line for award if the protest is sustained (Executive Protective Security Svcs. Inc. Comp Gen. Dec. B-299954). We will refer to Comp. Gen. decisions by the name of the company and the case number). A protester is not an interested party where the record shows that another offeror, not the protester, would be in line for award if it is sustained (Alutiiq Glbal Solutions, B-299088). A protester who did not comply with the requirements of the solicitation after extensive discussions is not an interested party (Metson Marine Svcs., B-299705). A protester does have standing when the agency’s decision to modify the contract deprived it of its ability to compete (Mgt Solutions & Systems, Inc. v US, 75 Fed. Cl. 820). A protester had standing when it was rated third but it was not clear the CO knew what it was doing (Southern Foods, Inc v US, 76 Fed. Cl. 769). The protester was not an interested party where the cost to perform a contract would be approximately $38 Million and it had $50,000 in savings (Scott v US, 78 Fe. Cl. 151). To prevail in a protest the protester must show that it was “prejudiced” where it was established when the protester can show it would have had a substantial chance of receiving the award (Axiom Resource Mgt. V US, 78 Fed. Cl. 576) but there was no prejudice when the offeror was not in the competitive range (Ironclad/EEI V US, 78 Fed. Cl. 351).
A bid is unbalanced if it is based on prices significantly less than cost for some work and significantly overstated for other work and there is some reason to doubt the bid will result in the lowest overall cost. An acceptance of a proposal with unbalanced pricing is not, in itself, improper provided the agency has concluded that the pricing does not impose an unacceptable risk and the prices the agency is likely to pay is not unreasonably high (Legacy Mgt Solutions, B-29998). Below-cost pricing is not prohibited and the government cannot withhold an award merely because its low offer is or may be below costs or where an offeror, in its business judgment, decides to submit a price that is extremely low (Central Texas College, B-309947). An offered price that is 15-20% below other offerors is not too low and did not represent a performance risk (Olympus Building Svcs. B-296741). Also, an agency may accept a bid characterized as “unrealistically low” (Medical Matrix, B-299526). But, an ambiguous and unrealistically low offer should have been eliminated from the competitive range on the basis the offeror did not understand the competition (Information Science Corp. v US, 75 Fed. Cl. 406). Or, an agency’s assessment of an offer as unrealistically low where it was assessing risk of offeror’s approach was ruled valid (Zolon Tech, Inc., B-299904).
- Evaluating Negotiated Contract Proposals
The government is free to use a variety of evaluation factors in evaluating proposals. However, the RFP must describe the factors and significant sub-factors to be used to evaluate proposals and their relative importance and agencies must evaluate the proposals according to the criteria established in the solicitation (ITT Federal Svcs Intl Corp, B-296783). Agencies must evaluate proposals in accordance with criteria spelled out in the solicitation (HWA, Inc) and a protest was sustained where the record showed the agency improperly treated subfactors under the primary technical evaluation criterion as weighted in descending order (Biorad Labs, Inc. B-297553). A protest was sustained where the agency applied an evaluation consideration not stated in the RFP (Information Tech Svcs, B-298840). In 2007 the GAO sustained several protests where the agency’s source selection decision was irrational and/or inconsistent with the administrative record. In deciding these protests the GAO generally considered the record at the time of evaluation and gave little weight to hypothetical arguments presented during the protest hearing. For example, a protest was sustained where the agency unreasonably determined all offerors to be approximately equal but ignored the protestor’s lower maintenance costs in violation of solicitation criteria (Sikorsky Aircraft, B-299145). But a protest was denied when the agency reasonably determined that technical superiority was worth the additional price (PWC Logistics Svcs, B-299820).
Agencies must apply evaluation criteria equally to all competitors. A protest was sustained where it was found the solicitation required proposals to be evaluated as more advantageous the greater the extent to which more recent experience reflected the scope of work whereas the CO instead applied a “threshold of sufficiency” approach to the detriment of the protester (L-3 Communications Titan Corp, B-299317).
Agencies must consider cost or price in evaluating competing proposals and ruled that a competitive range determination was invalid because price was not properly considered (Information Sciences Corp.). The agency unreasonably made a single award of 22 items where second award to protester of 6 items would have saved the government money even with the additional administrative costs (Para Scientific, B-299046).
Alleged improper cost or price realism analyses decisions received considerable attention in 2007. In one decision the GAO held the agency’s price realism evaluation under a fixed-rate solicitation was not unreasonable where it was made as part of an assessment of the risk of the vendor’s approach (Zolon Tech). A price reasonableness analysis involves prices that are higher than warranted; price analyses whether prices are lower than warranted are not required unless the solicitation calls for it (Indtai, B-298432). The agency engaged in improper cost realism analysis under a cost type contract where there were downward adjustments of proposed costs on the basis the costs were unsupported rather than because the agency concluded the actual costs were likely to be lower than proposed (Magellan Health Svcs, B-298912). A protest was sustained where the agency’s cost realism analysis accepted awardees work allocation in its cost proposal but that allocation was inconsistent with the firm’s allocation of work under its technical proposal (Earl Industries, B-309996).
FAR 9.104 states that for an offeror to be considered responsible, it must, among other things, be able to comply with the required performance schedule, have adequate financial resources, and have the necessary organization, experience, operational controls and technical skills or the ability to obtain them. The burden falls on the contractor to demonstrate its responsibility and in the absence of information clearly indicating responsibility, the CO must make a determination of non-responsibility. The Court rules it will not disturb a non-responsibility determination unless the protester can show the agency had no reasonable basis for its determination – simply put, this is a matter where the CO is vested with broad discretion in exercising its judgment (United Enterprise & Assoc. v US, 70 Fed. Cl. 1). In a decision related to the offeror’s capability to perform the work, the Court ruled such a decision constituted a non-responsibility determination where the CO was given the benefit of the doubt (Southern Foods Inc. v US, 76 Fed. Cl. 769).
There were many cases addressing firms’ organizational conflict of interest (OCI). The GAO ruled there was an “impaired objectivity” OCI that resulted from the contractor’s continuing to receive payment from a firm over which it would have management responsibility (Greenleaf Construction, B-293105). The GAO also ruled there was an impaired objectivity OCI where several evaluators were employed by firms that promoted a type of technology that was directly challenged by that offered by the protester. The GAO ruled the agency’s reliance on the evaluator’s self-certification of the absence of COI did not meet its obligation to ensure no COI existed, especially where the evaluators worked for a firm whose “economic lifeblood” was directly competitive with the other technology (Celdon Labs, B-298533). The GAO also ruled there was an OCI in providing a spectrum of engineering support services to a contractor who was involved in the manufacture and marketing of spectrum-dependent products (Alion Science and Technology, B-297342).
No OCI existed resulting from the contractor’s complete cessation of continued receipt of payments from a firm over which it would have management responsibility (Greenleaf Construction). There was no OCI where the company moved the affected work to a separate entity and established a firewall around the entity sufficiently to mitigate the COI (Business Consulting Assocs., B-299758). Ruling mere inference or suspicion is not sufficient, the GAO found no biased ground rules where the awardee played no role in drafting a statement of work (Operational Resource Consultants, B-299131). The awardee, who was the incumbent, was not so embedded as to have insight into the agency’s operations beyond that expected from a normal contractor ruling the incumbent status, without more information to the contrary, typically does not constitute “unequal access to information” which is required to prove a COI (ARINC Engrg Svcs v US, 77 Fed. Cl. 196). Or, there was no “unequal access” created by virtue of incumbency and it required no attempt to equalize competition to compensate for it (Council for Adult & Experimental Learning, B-299798). Similarly, its role as subcontractor did not provide any competitively useful information to constitute COI (MASAI Tech,. v US, 79 Fed. Cl 433).
FAR 15.304 requires that past performance be one evaluation factor that must be considered in all negotiated procurements and the boards and courts are defining how this new factor will be applied. When negotiated awards are to be made with discussions offerors are to be given the opportunity to clarify adverse past performance while negotiated awards that do not provide for discussions may be given the opportunity to clarify past performance. An agency is not required to communicate with offerors past performance information where discussions are not held unless there is a clear reason to question the validity of the past performance information.
Several cases confirmed an agency has broad discretion in determining whether a particular contract is relevant (Sumaria Systems, B-299517). The agency has broad discretion to determine the scope of the past history to be considered provided all proposals are evaluated on the same basis (Axiom Resource Mgt., B-298870). The agency is not precluded from considering any relevant information regardless of its source (Paragon Systems, B-299549). The agency’s past performance evaluation may be based on the perception of inadequate prior performance regardless of whether the protester disputes the agency’s interpretation of the underlying facts (J Womack Enterprises, B-299344).
It is reasonable to consider relevant only that past performance related to similar tasks performed under government contracts. When the agency considered all four of the protester’s past performance references but gave greater weight to the most similar contract to the contract at issue the GAO ruled there was nothing unreasonable done since this contract was an appropriate indicator of likely success (Metson Marine Svcs, B-299705). Where the RFP asked for a narrative describing similar contracts for the last five years the GAO sustained the protest where the bulk of awardee’s highly credited past performance occurred longer than the last five years (GlassLock, B-299931). The GAO ruled it was appropriate to award a “little confidence” past performance rating based on a similar relevant contract despite the fact that its rating on another relevant contract was “very good” (Sikorsky Aircraft, B-299145).
It is the contractor’s responsibility to provide sufficient evidence to establish its past performance history. When the contractor provided references of only limited relevance the agency assigned only half of the available points for past performance the contractor contended the agency should have contacted more references. The GAO found the past performance rating reasonable and the contractor failed to provide adequate information holding there is no requirement that all or a specific number of references be contacted (Beck’s Spray Service, B-299599). References for contracts with a maximum value of $564,000 did not meet the requirements for past performance information on a contract similar to the solicited $15 Million (Wizdom System, B-299829).
An agency properly may attribute the experience or past performance of a parent or affiliated company to an offeror where the proposal demonstrates the resources of the parent or affiliate will affect performance of the offeror. Past performance of proposed subcontractors may properly be considered in evaluating past performance of an offeror where the solicitation does not expressly prohibit it (Indtai Inc.).
FAR 15.306 requires the CO discuss with each offeror being considered for award significant weaknesses, deficiencies or other aspects of its proposal that could be altered or explained to enhance the proposal’s potential for award. Discussions should not be confused with clarifications which are limited exchanges with offerors to allow correction of minor or clerical errors or to clarify proposal elements (Government Telecommunications, B-299542). Communications to correct minor errors in one offeror’s proposal constitute clarifications and hence do not require they be held with other offerors (Dyncorp Intl v US, 76 Fed. Cl. 528). Exchanges with an agency are clarifications because the protester was not allowed to revise its proposal (OfficeMax, B-299340). There was no merit in the agency’s argument that the RFP did not intend to have the agency hold discussions when deciding whether exchanges were discussions or clarifications – exchanges that allow offerors to revise proposals in a material way are discussions, not clarifications (Computer Sciences Corp. B-298494).
It has been held there is no requirement that all areas of a proposal be addressed during discussions but only significant weaknesses e.g. those that prevent the offeror from having a reasonable chance of receiving the award need be addressed (PWC Logistics Svcs,). While an agency must conduct “meaningful discussions” (i.e. discuss areas in a proposal requiring amplification or revision) an agency is not required to “spoon feed” offerors or conduct successive rounds of discussions until all proposal defects have been corrected (Metson Marine). Discussions are not considered inadequate simply because a weakness not addressed during discussions later becomes a determinative factor between two closely ranked proposals (Planning & Development Collaborative Intl, B-299041). During discussions the CO is not obligated to identify each and every item that might improve an offeror’s proposal (Blain Intl Group, 79 Fed. Cl. 272). If an agency holds discussions and identifies a concern based on the revised proposals that should have been raised earlier, the agency must reopen discussions to raise the concerns with all offerors (Planning & Development).
