Best Value Bid Protest : How to Attack Them

Launching a best value bid protest very common and among the most litigated cases before GAO. Oftentimes, agencies do not follow the solicitation’s requirements. However, to attack the agency’s actual evaluation needs an argument that is more than just a disagreement. Instead, attacking the best value evaluation requires a showing of what exactly the agency did wrong, the unreasonableness of the actions and how were prejudiced as a result.

Example of  How You Can Lose an Attack in a Best Value Bid Protest

An example of a GAO bid protest that challenged the best value decision of the government was when KBS, Inc., of Richmond, Virginia. KBS protested the award of a contract to Blueridge General, Inc., of Norfolk, Virginia under request for proposals (RFP) No. N40085-10-R-3002, issued by the Department of the Navy, Naval Facilities Engineering Command for exterior renovation and replacement of the roof of Building 3 at the Naval Medical Center in Portsmouth, Virginia.

KBS challenged the evaluation of its proposal and the agency’s best value trade off determination. The GAO Protest was denied simply the protestor failed to show that the agency’s evaluation and best value trade off was unreasonable.

Negotiated Contracts and Attacking Agency Best Value Evaluations

For negotiated solicitations, the government is required to conduct a best value and trade-off analysis under FAR 15. However, when attacking the result in a best value bid protest, your best bet is to focus on the evaluation weight placed upon non-price and price factors.

You must also focus on maximizing your technical proposal in that it provides for strong management and key personnel offering. Matters such as education, certification and years of experience weigh heavily when the Agency looks at the value of your proposal.

Understanding the PWS requirement is also heavily weighed when considering best value and trade-offs. You must focus on telling the government HOW you plan on meeting each PWS requirement. Only when you have a compelling and compliant technical proposal can you effectively attack the Agency best value analysis in a bid protest.

Lowest Price Technically Acceptable Requires No Trade-Off

A common misconception when filing a best value bid protest is that you can win by attacking the best value decision by the source selection members. This can be a critical mistake because in an LPTA procurement, there is no allowance for a best value trade-off decision.

The Agency is however allowed to perform a limited best value analysis when considering whether your proposal meets the acceptability requirements as stated in the solicitation.

• This is one reason why government contracting agencies are turning towards lowest price technically acceptable source selection strategies.  They primarily do this to limit the amount of bid protests that they can lose.
• Another important point to remember is that GAO cannot second guess the Agency’s decision. It can only overturn the source selection decision if it is unreasonable, contradicts the terms of the solicitation or violates procurement law

In Bid Protests Agency Only Has to Make a Rational Decision and Not Be Arbitrary

When bid protest lawyers file a best value bid protest at the GAO, making the argument of improper agency decisions must be supported with both case law and evidence.

• Under administrative law, the agency generally wins business judgment decisions because the burden to defeat the agency is very high for bid protest law firms.
• The agency’s decision simply has to be rational and not violate the rules. More specifically, the agency’s action and decisions only have to make sense. This is generally called the ‘rational basis test.’

Was the Agency Source Selection Decision Unreasonable?

Many bid protest lawyers understand this basic plan of attack. However, it takes more than a basic allegation to win a bid protest. Best value bid protest attacks are one of the toughest to overcome at the GAO level.

You should at least consider the following:

• Compare the solicitation requirements for each factor and analyze whether you have in fact met or exceed the solicitation requirements
• Did you pose a unique understanding of the “intimate details” of the PWS? – This is mostly advantageous for incumbent contractors.
• What in your proposal do you believe that the Agency did not consider in your proposal?
• Did you receive the same technical evaluation but the Agency awarded the contract to a higher priced bidder?

To successfully prevail in a best value bid protest, the agency’s evaluation must be unreasonable, contrary to the award criteria in the solicitation, or a clear violation of law. This yet another reason that contractors who intend to file a protest based upon a best value challenge should seriously consider not filing on their own with proper legal guidance from their lawyers.

If you are seeking professional help with your GAO Protest,  contact Watson & Associates at 1-866-601-5518.