Tuesday, September 4, 2012


On August 22, 2012, we reported on a Government Accountability Office (GAO) decision in which GAO sustained a protest where the agency selected only the most highly technically rated proposals for the best value tradeoff analysis ("downsizing" the vendors).  GAO said that before an agency can select a higher-priced proposal which is technically superior to a lower priced one, the agency must explain its tradeoff analysis.  And it must perform the analysis of all technically acceptable offers.

On that same day, GAO issued another almost identical decision sustaining a protest where the agency conducted a tradeoff analysis in a best value procurement only among the three proposals with the highest point scores but did not consider the lower prices offered by other apparently technically acceptable lower-rated offerors, including the protester.  Twenty-four firms submitted offers.  The contracting officer selected "the top three most highly technical rated offers" for award.  Wrong, says GAO.

Keep in mind GAO's position.  The evaluation of a proposal is a matter within the agency's discretion.  GAO will examine the record to determine whether the agency's judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations.  While GAO will not substitute its judgment for that of the agency, it will sustain a protest where the agency's conclusions are inconsistent with the solicitation criteria, undocumented, or not reasonably based.

Best value procurements require the agency to perform a tradeoff between price and the non-price factors.  Here, the protester's price was second lowest and the successful awardee's price was higher.  An agency must meaningfully consider cost or price in making its tradeoff decision.  A proper tradeoff decision must explain why technical superiority warrants paying a price premium.  And that must be done in the context of an analysis of all technically acceptable proposals.

Obviously, with 24 proposals, the agency was inclined to focus on a limited group for the tradeoff analysis.  But GAO's recommendation requires the agency to go back and perform a proper tradeoff analysis which includes all technically acceptable proposals.  Attorneys' fees and costs to the protester.

bill@spriggsconsultingservices.com   www.govconalert.com

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