Third Time’s the Charm: Protest Sustained by COFC Due to Failure to Conduct Discussions and Flawed Price Reasonableness Evaluation

Proving that an agency acted improperly in its source selection process can be a difficult task for any protester. In theory, for a best value tradeoff decision, the agency’s decision and the process to come to that decision seems easy: the agency does a tradeoff between cost and non-cost factors, and that which is most advantageous to the government is awarded. How hard could it be? And the decisions handed down by the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) seem to confirm that it isn’t that hard, seeing as many cases challenging a best value decision are denied. This is, in large part, due to the discretion agencies are afforded in their source selection decisions. Whether an agency conducts discussions during the source selection process is one of many procurement factors that is left up to the agency’s discretion. But, every so often, a decision comes along to prove that there are limits to an agency’s discretion, and in this case, the agency’s discretion overstepped its bounds with its price reasonableness decision and the unjustified decision to not perform discussions.

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GAO Sustains Protest for Converting Best-Value Evaluation into LPTA

In a recent decision, GAO sustained a protest arguing that the agency had actually converted a best-value tradeoff procurement into a lowest-priced, technically acceptable competition. GAO held that the agency had not properly followed the evaluation criteria.

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GAO: If You Weren’t Prejudiced, We Won’t Sustain Your Protest

Much like schoolyard basketball, bid protests feature a “no harm, no foul” rule: unless an offeror can credibly allege that it was prejudiced by a flawed evaluation, GAO won’t sustain a protest.

Establishing prejudice can be tricky, depending on the type of evaluation at issue. Under a lowest-price technically acceptable award, a protester generally must show that it was next-in-line for the award (that is, it was technically acceptable and had the next-lowest price, after the awardee). Best value awards, on the other hand, are a bit more flexible: usually, the protester must establish that the evaluation flaw adversely affected its competitive standing.

A recent GAO decision, however, highlights that these two means of establishing prejudice aren’t always distinct.

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GAO: Past Performance Should Relate to Solicited Services

Past performance is an important evaluation factor in many solicitations. Essentially, it allows an agency to guess as to the likelihood of an offeror’s successful performance under a solicitation by looking to its history of performance on similar projects in the past.

GAO recently confirmed it is “axiomatic” that past performance examples should align with the solicitation’s requirements. If an offeror submits unrelated examples, it risks a downgraded past performance score.

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Where Non-Price Ratings Identical, Agency Wasn’t Required to Choose Lower-Priced Offeror

In a best value competition, when two offerors receive identical adjectival scores on the non-price factors, one might assume that the procuring agency would be required to award the contract to the lower-priced offeror.

Not so.  In a recent bid protest decision, the GAO held that where two offerors received identical scores on three non-price factors, the agency could still elect to award the contract to the higher-priced offeror.

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Agency Creates Fake Source Selection Documents

An agency has been caught creating fake source selection documents to pad its file in response to several GAO bid protests.

A recent GAO bid protest decision shows that, after award, the agency created new source selection documents and revised others, then pretended those documents had been part of the contemporaneous source selection file.  And although the agency’s conduct resulted in the cancellation of a major procurement, it’s not clear whether the agency employees who created the fake documents will face any punishment.

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2017 NDAA Restricts DoD’s Use of LPTA Procedures

The 2017 NDAA is full of important changes that will affect federal contracting going forward. As Steve wrote about earlier this week, some of these changes relate to government contracting programs (like the SDVOSB program). Still others relate to how the government actually procures goods and services.

One of these important changes severely limits the use of lowest-price technically-acceptable (“LPTA”) evaluations in Department of Defense procurements. Following the change, “best value” tradeoffs will be prioritized for DoD acquisitions. This post will briefly examine when LPTA procurements will and won’t be allowed under the 2017 NDAA.

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