GAO Allows Contracting Officer Discretion to Act as Tie-Breaker

Your company has submitted a proposal for a Lowest-Priced, Technically Acceptable acquisition. To your surprise, you find out another company has submitted a technically acceptable offer with the same price. Equally surprising, the solicitation does not contain any provisions instructing the agency on how to pick from otherwise equal bids. So what is the contracting officer to do – issue an order for a standoff, a la the O.K. Corral? (For the record, we do not advise this as a viable method of conflict resolution.)

Fortunately, GAO encourages a less drastic solution–use of the contracting officer’s reasonable discretion.

This very scenario occurred recently in AVIS Jordan, B-417248 (Comp. Gen. Apr. 23, 2019).

The Department of State issued RFQ No. S-J010-19-Q-0005 for rental vehicles. Offerors were to provide four full-size V-8 SUV 4×4’s for one year at the US Embassy in Amman, Jordan.

Aside from the “full-size V-8 SUV 4×4” description, the following represents the entirety of the vehicle quality description:

The contractor shall certify in writing that all vehicles meet the requirements of local laws, and are covered by a comprehensive insurance plan. Vehicles shall be current year model or no more than one year old (not to exceed 1000 km).

While there is no reference to an evaluation methodology within the RFQ, GAO recognized that “the contracting officer stated that award under the RFQ was to be made on a lowest-priced, technically acceptable basis.”

AVIS Jordan and Masafat Car Rental were two of the vendors that submitted quotations. They “each provid[ed] the same lowest price.” The only difference is that AVIS Jordan’s proposed vehicles were 2017 Chevrolet Tahoes while Masafat Car Rental proposed use of 2019 Chevrolet Tahoes.

The agency issued the purchase order to Masafat Car Rental for $122,033.90.

AVIS Jordan protested this award because “the solicitation did not permit the agency to consider the model year of the quoted vehicles in order to resolve the tie with regard to price.” The agency’s responded that absent any tie-breaking procedures in FAR parts 12 or 13 as well as a lack of tie-breaking protocol in the RFQ, “the agency reasonably exercised its discretion to consider vehicle model year to resolve the tie[.]” The agency also claimed that it was “clearly in the best interest of the government to rent newer model vehicles[.]”

In evaluating the agency’s reasoning for this award, GAO recognized that “when awarding contracts using simplified acquisition procedures, contracting officers are instructed to use innovative approaches to the maximum extent practicable. FAR § 13.003(h)(4).”

Here, GAO found the agency’s use of model years was “not per se prohibited by the solicitation, or any procurement law or regulation.” None of these sources “established tie-breaking procedures in the event that two vendors quoted the same price.” Further, AVIS Jordan offered “no argument or evidence to dispute the superiority of the 2019 Chevrolet Tahoe to the 2017 model.” Given this lack of regulatory guidance and no argument against the 2019 model year, GAO found the agency’s model year comparison reasonable “under the circumstances.”

In a nutshell, in the absence of a prescribed tie-breaking procedure or any evidence showing the agency’s award was unreasonable, GAO allowed the agency to use its reasonable discretion in making the award.