When is a competitor’s low price simply too low to be realistic? Maybe never, at least when it comes to challenging the low price in a GAO bid protest.
As seen in a recent GAO bid protest decision, when a fixed-price solicitation does not call for a price realism analysis, the procuring agency is not required to conduct one–and a competitor will not succeed in challenging the award on the basis of a supposedly unrealistically low price.
The GAO’s decision in GAO Protest of Beyel Brothers, Inc., B-406640, B-406640.2 (July 18, 2012), involved a Navy solicitation for charter ship services. The solicitation was a small business set-aside, and called for the award of a fixed-price contract. The solicitation provided that award would be made on a lowest-price, technically-acceptable basis.
Pricing was to be evaluated on the basis of offerors’ charter hire rates and fuel consumption rates. The solicitation stated that the reasonableness of offeror’s prices would be evaluated, but said nothing about a price realism analysis.
The Navy received two offers, one from Beyel Brothers, Inc., and the other from Northcliffe Ocean Shipping and Trading Company, Inc., or NOSAT. After discussions, the Navy awarded the contract to NOSAT, which proposed a price nearly $3 million lower than Beyel’s.
Beyel filed a GAO bid protest. Beyel argued in part, that NOSAT’s fuel consumption rates were too low and thus unreasonable “as a matter of law.”
The GAO denied the protest. It stated, “Beyel’s argument reflects a lack of understanding as to the distinction between price reasonableness and realism. The GAO explained, “[t]he purpose of a price reasonableness review in a competition for the award of a fixed-price contract is to determine whether the prices offered are too high, as opposed to too low.”
The GAO continued, “[a]rguments, such as the one raised by Beyel here, that an agency did not perform an appropriate analysis to determine whether prices are too low such that there may be a risk of poor performance concern price realism. A price realism evaluation is not required where, as here, a solicitation provides for the award of a fixed-price contract and does not include a requirement for a price realism evaluation.”
The Beyel Brothers GAO bid protest decision demonstrates that when it comes to fixed-price contracts, agencies are not required to evaluate whether offerors’ pricing is too low, unless the solicitation expressly calls for such a price realism evaluation.
The decision also illustrates the oft-misunderstood difference between price reasonableness and price realism. As Beyel found out the hard way, price reasonableness deals with the question of whether an offeror’s pricing is too high; price realism addresses whether pricing is too low. And just because the procuring agency promises to evaluate price reasonableness does not mean that it has a corresponding duty to evaluate price realism.