Protest of Exclusion from the Competitive Range — Avoid Costly Mistakes

After 1997, FAR competitive range requirements are somewhat different. Before, the Agency had to consider whether your proposal stood a reasonable chance of award.  However, FAR § 15.306(c)(1) a government contracting agency can exclude your proposal from the competitive range if it is not rated as one of “most highly rated” proposals. When litigating a GAO protest of exclusion from the competitive range, contractors must be aware of this change is procurement law.

Protesting of Exclusion from the Competitive Range to GAO

When reviewing your bid protest, GAO will only look to see if the Agency’s exclusion from the competitive range was reasonable and followed applicable procurement statutes. Since government contracting agencies can exclude your proposal from the competitive range as not being one of the most highly-rated proposals, it would seem logical to look at the Agency’s technical proposal evaluation.

• Finding legal flaws in your technical proposal evaluation could pave the way for uncovering the Agency’s competitive range determination.
• Government contractors must find where the Agency did not follow the expressed language of the solicitation.

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How Do Government Contracting Agencies Review Proposals For Competitive Range Determinations?

Agencies make competitive range determinations by looking at the merits of the competing proposals against the stated evaluation factors in the solicitation.  Federal contracting agencies are also required to document thoroughly their source selection decisions.

• Without statement specific facts to support the Agency’s misevaluation, sustaining a protest of exclusion from the competitive range can be an uphill battle.
• The agency can exclude a proposal from the competitive range simply because your competitor addressed required information better than you did. See Matrix Gen., Inc., B-282192 (an agency reasonably made an adverse competitive range determination because protestor did not address certain criteria as well as other offerors).

When making competitive range exclusion decisions, there are other factors that can come into play. For example, if material omissions claimed by the Agency require a substantial rewrite of your proposal, then the government can make the decision to exclude you from the competitive range.

Government contractors that file a protest of exclusion from the competitive range should see whether the Agency failed to evaluate properly all of the factors stated in the RFP.

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If the government excluded your proposal from the competitive range, call our bid protest lawyers for immediate help. Call toll-free 1-866-601-5518.  FREE INITIAL CONSULTATION.