Competitive Exclusion & Protesting Exclusion from the Competitive Range Determination

After submitting your proposal, an exclusion from the competitive range determination letter from the agency creates significant amounts of stress and disappointment. Making sure that your bid is compliant and presents a competitive edge is essential to stand a chance of winning.

What is the Competitive Range Determination?

The competitive range determination in government contracting means that the Agency makes a decision as to the final group of proposals that will have serious consideration for an award.

• Under Federal Acquisition Regulation § 15.306(c)(1) to retain your proposal in a competitive range, the Agency makes a decision that your proposal is among the most highly rated, or Reasonably concludes that the proposal has a realistic prospect of award.
• Proposals with significant informational deficiencies may be excluded.

Reasons Why Proposals are Excluded from the Competitive Range

• Non-compliant with essential parts of the solicitation;
• Pricing is significantly higher that the government’s estimate and no best value associated;
• Questions as to your understanding of the PWS requirements;
• Cut-off for bidders in the lowest price technical acceptable procurement; and
• Low technical scores.

Government contractors often will file a GAO protest due to competitive expclusion. To stand a chance of winning a bid protest at GAO, you will have to show that the Agency acted unreasonably. Common reasons may include:

• Oversight of critical area of your proposal;
• Miscalculation of pricing;
• Other important misevaluations in a competitor’s proposal.

Note: If your proposal is technically unacceptable and would need major revisions to become acceptable, GAO has decided that exclusion from the range determination is permissible. See CMC & Maint., Inc., B-290152, June 24, 2002, 2002 CPD ¶ 107 at 2.

Ways to Avoid Costly Mistakes in Technical Approaches to PWS Requirements

The government can make an exclusion from the competitive range determination if you omit or provide inadequate information about your technical approach to the PWS requirements. GAO’s hands are sometimes tied.

• Most solicitations rate your approach to meeting the PWS requirements.
• You must address HOW you intend to meet those requirements in high detail or risk exclusion.

Avoid generalized statements in your proposal

This area is one of the biggest reasons why the government makes an exclusion from the competitive range. Proposal writing with generalized information will not make it into the range because the Agency will claim that your bid fails to provide the level of detail required. See Protesting SBA Certificate of Competency COC Decisions 13 CFR 125 and FAR 19.6.

Do Not Rely on Agency Discussions to Bail You Out 

 Often, government contract lawyers may argue that the government could have allowed you to correct any deficiencies through conducting meaningful discussions. The problem here is that agencies usually will hold discussions after the competitive range determination is established. Therefore, this argument will not work. See also SBA HUBZone Employee Requirements 13 CFR 126.

Exclusion Mistakes by the Agency

First, the decision to issue a determination is principally a matter within the reasonable exercise of discretion of the procuring agency.

Agency did not take the relative cost of your proposal into account. One GAO protest showed that an agency may not exclude a technically acceptable proposal from the range. However, without taking into account the relative cost of that proposal to the government. See Kathpal Techs., Inc.; Computer & Hi-Tech Mgmt., Inc.,    B-283137.3 et al., Dec. 30, 1999, 2000 CPD ¶ 6 at 9; Meridian Mgmt. Corp., B-285127, July 19, 2000, 2000 CPD ¶ 121 at 4.

More specifically, government contracting agencies may not exclude a technically acceptable proposal from the competitive range only because the proposal received a lower technical rating than another proposal or proposals, without taking into consideration the proposal’s price. Read also 13 CFR 125.6 Understanding Rules of Prime Contractor’s Limitations on Subcontracting FAR 52.219 14.

Competitive exclusion decision based on flawed cost realism analysis can be a reasonable approach to filing a GAO protest. The Federal Acquisition Regulation (FAR) provides that an agency “shall establish a competitive range comprised of all of the most highly rated proposals.” FAR § 15.306(c)(1).

• Although agencies are not required to retain proposals in the range that the agency reasonably concludes have no realistic chance for award, its decision to exclude your proposal based entirely on the proposal’s higher evaluated cost, the agency’s cost realism analysis must be reasonably thorough, accurate and complete.
• If the agency’s cost realism analysis reflects material errors or flawed assumptions it cannot be considered reasonable. Therefore, filing a bid protest for exclusion from the competitive range determination can have merit.

For more help in a bid protest challenging exclusion from the competitive range determination letters, call a bid protest lawyer at 1-866-601-5518.