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.Continue reading
It seems like it should go without saying, but, just because an offeror with better evaluation ratings is preferred over one with neutral ratings does not mean the latter offeror was penalized for having neutral ratings, or that the neutral rating was a penalty. Nonetheless, in a recent bid protest a company creatively argued that it was penalized for having neutral ratings, and GAO unsurprisingly rejected it.Continue reading
When it comes to “best value” evaluations, agencies ordinarily have broad discretion to accept higher-rated, higher-priced proposals.
How broad is that discretion? Well, in one recent case, the GAO held that an agency reasonably accepted the awardee’s higher-rated proposal, despite a whopping 91% price premium.Continue reading
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.
In a best value tradeoff evaluation, a procuring agency must consider the benefits of a lower-cost proposal, even if that proposal’s cost is not as close to the agency’s internal cost estimate as a higher-priced proposal.
As demonstrated by a recent GAO bid protest decision, it is improper in a tradeoff analysis for an agency to refuse to consider the relative benefits of paying a lower cost for a lower-rated proposal.