Saturday, November 17, 2012


The Government Accountability Office (GAO) has just issued a decision sustaining a protest on the grounds that the agency failed to perform a proper technical and price realism proposal evaluation.  The agency did not properly consider the awardee's proposed technical approach and also failed to reasonably consider this technical approach in conducting its price realism assessment.

The evaluation of an offeror's proposal is a matter within the agency's discretion. In reviewing an agency's evaluation of proposals, GAO will determine from the record whether the agency's judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. GAO does not substitute its judgment for that of the agency.  But it tests the agency's reasoning and whether the agency has complied with the rules, including the requirement of proper documentation.

We should insert here the importance of keeping up with the opinions and decisions of judicial tribunals, including GAO.  Public procurement is based on detailed statutes and regulations because we taxpayers demand the ability to control how our dollars are spent.  But of equal importance are the pronouncements of the various tribunals hearing protests and disputes.  They also lay down the law. And the great thing about reading these cases is that they take place in real life situations which make it easier to apply the legal principles to practice.  That's why law schools use the case study method of learning.  Read the cases.

In this protest, the successful awardee proposed extensive use of uncleared personnel to perform work which could involve classified material.  After examining the record carefully, GAO concluded "that DIA did not reasonably consider CSC's proposed use of 'large numbers' of uncleared personnel to perform the solicitation requirements in evaluating CSC's proposal, and sustain the protest on this basis." (GAO added in a footnote that it did not give the agency's "post-hoc" argument "any weight".)

On price realism, GAO reiterated the rule that price realism need not necessarily be considered in evaluating proposals for fixed price awards.  However, an agency may alert bidders that the agency will consider whether prices reflect on an understanding of the contract requirements.  "Analyzing whether an offeror's fixed price is so low that it reflects a lack of understanding of solicitation requirements is the crux of a price realism evaluation . . . ."  The record in this case showed the large numbers of uncleared personnel may have been the principle reason for the awardee's much lower price.  GAO sustained the protest on this ground as well.

It's important to study the rules in these factual contexts to see how the various tribunals apply them to actual experiences.   

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