Protests of Award Decisions

• 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 (Sherrick Aerospace, B-310369). Agencies must evaluate proposals in accordance with criteria spelled out in the solicitation (Serco Inc v US, 81 Fed. Cl. 463). Protests were sustained where the record showed the agency (1) improperly treated subfactors on a pass/fail basis rather than a descending order of importance as stated in the RFP (Helicopter Transport Svcs, B-400295) (2) essentially made an award to a lowest priced technically acceptable offer contrary to RFP requirements (Information Sciences Corp. v US, 80 Fed. Cl. 759) (3) where the RFP did not disclose relative weights of evaluation factors they should be considered equal in weight (Fintract Inc. B-311462) (4) a technical evaluation was flawed because the agency considered an undisclosed evaluation factor (Consolidated Engrg Svcs, B-311313) and (5) the agency improperly relaxed requirements for an awardee ruling that all competition must be conducted on an equal basis (New Jersey & H Street, B-311314).

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 (USGC Inc B-400184). The GAO ruled that a competitive range determination was invalid where price was not properly considered (Information Sciences Corp) but it was not improper to consider price under two separate evaluation factors (Eomax Corp. B-311391).

There were many cases addressing firms’ organizational conflict of interest (OCI). An incumbent status by itself was insufficient to create an OCI where though it may have had access to information other offerors did not possess the agency properly disclosed the nonpublic information thereby eliminating unequal access (Alabama Aircraft Indus, v US, 83 Fed. Cl 966). Claims of OCI must be based on hard facts not mere suspicion or an allegation of what “could” happen (Lumetra v US, 84 Fed. Cl. 542) or allegations that employee may use information gained during performance to benefit themselves or employers in future endeavors is too speculative (Savannah).

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