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.

In the protest, AT&T Mobility LLC (AT&T) protested a RFP award under a DHS for cellular communications services and equipment. AT&T Mobility LLC, B-420494 (May 10, 2022). The solicitation established that the award would be made on a best-value trade-off basis and looked at: “(1) technical (40 percent); (2) transition (40 percent); and (3) corporate experience (20 percent), which included the key personnel experience element.”

While price was less important than these factors, the agency would “not make an award at a price premium it consider[ed] disproportionate to the benefits associated with the evaluated superiority” of one proposal over another. AT&T’s total evaluated price was $19,998,857 and Verizon’s total evaluated price was $17,928,540.

The protester argued “that the adjectival definition ratings set forth in the solicitation for the ratings of outstanding, satisfactory, and unsatisfactory indicated the agency would conduct a qualitative evaluation to assess whether proposals failed to meet, met, or significantly exceeded requirements, as well as determining whether specific elements of proposals constituted strengths, weaknesses, or deficiencies.” But the agency only looked at whether the proposal was “satisfactory.” GAO sustained the protest based on the agency’s use of pass/fail analysis, over the agency’s argument that the solicitation criteria were actually pass/fail.

GAO wrote:

We find unavailing the agency’s argument that the solicitation as amended contemplated the type of acceptable/unacceptable assessment of proposals conducted by the evaluators here. The agency’s reliance on the SOW’s statement–that offerors must agree to meet all 112 core requirements to be found technically acceptable–fails to read the solicitation as a whole. Specifically, the agency’s argument gives no effect to the solicitation provisions requiring offerors to provide, and the agency to assess, detailed narrative descriptions for many of the requirements.

Because the agency provided no qualitative analysis of proposals on either the technical or transition factor, the agency failed to follow the solicitation criteria.

In addition, the agency focused only on the adjectival rating, and did not compare proposals to each other. “The only comparison of the proposals in the record before us is the SSO noting that both proposals received ratings of satisfactory.” Therefore, the agency did not look “behind the adjectival ratings to consider the qualitative value of the proposals in determining that they were technically equivalent.”

Agencies must stick to their original evaluation criteria in a solicitation. They cannot change their horses midstream. Here, GAO found that the agency had effectively turned a comparative, best-value evaluation, into a LPTA evaluation. If you suspect that an agency has done a similar thing, a protest may be in order.

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