Avoid Costly Mistakes When Challenging the Agency’s Best Value Procurement Source Selection Process
Sometimes government contractors may fall short of winning arguments challenging the agency’s source selection decision. Simply saying that the agency chose to go to the lowest price and not the better value of your contract will be a tough argument to sell in a bid protest.
In a recent bid protest at the Court of Federal Claims, the court denied the Plaintiff’s allegation that the Agency’s source selection decision for best value procurement was justified when the Agency chose to award to a company that had a lower technical rating than the protestor.
The plaintiff in that bid protest was the incumbent contractor, Bahrain Maritime & Mercantile International BSC(C) (“BMMI”). In the bid protest, BMMI argued that the source selection document and award decision was arbitrary and capricious, inconsistent with the terms of the solicitation, and in violation of applicable procurement regulations.
BMMI also asked to the Court of Federal Claims for a permanent injunction against the agency, DLA, for the award of the contract to OFI. The underlying lesson in this protest shows that the source selection decision, once documented, can stand regardless of whether the Agency should have made a better business decision.
DOD Source Selection Procedures, Process and Evaluation Criteria
This government contract was to be awarded to the offeror that provided the best value to the government, utilizing tradeoff source selection procedures as provided in FAR 15.101-1. AR 1:182. The solicitation also stated that the government would make an award to the “responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other non-price factors considered.” AR 1:182. The solicitation also stated, “[b]ecause this procurement will use the tradeoff process as outlined in FAR 15.101–1, the Government may accept other than the lowest priced proposal as the overall best value procurement.” Read more about contracting by negotiation and DOD source selection procedures.
- This additional lesson sends the blunt message that simply because the government “may” choose to award to other than the lowest price, it does not have to.
- The government generally creates rules to allow it to go outside the basic requirements but protestors should not make the argument that the government has to. Hence the word “may.”
Prior Awards, GAO Protests, and Corrective Actions: BMMI filed four GAO bid protests and DLA did take corrective action in the first three protests. However, GAO denied the fourth protest. BMMI then filed a Court of Federal Claims bid protest challenging the source selection process.
Merits of Bid Protest: In its source selection decision protest to the court, BMMI’s argued that DLA’s source selection decision document lacked a proper best value analysis because DLA failed to give sufficient weight to BMMI’s superior technical rating, and superior technical rating and past performance evaluation over the awardee OFI. The Court of Federal Claims disagreed.
- The court found the DLA did, in fact, consider BMMI’s technical superiority under over OFI in accordance with the technical evaluation criteria on the solicitation.
- DLA Acknowledged BMMI’s Technical Superiority over OFI under the Source Selection Evaluation Criteria Set Forth in the Solicitation.
- DLA Acted within Its Discretion in Awarding the Contract to OFI Based on Its Conclusion That BMMI’s Price Premium Was Unwarranted.
Arguing That the Agency Evaluated for Lowest Price and Not Best Value
The Court of Federal Claims found no merit to BMMI’s argument that given its advantages as to Factors I and II, DLA’s award of the contract to OFI source selection process effectively and unlawfully converted a best-value procurement into a lowest price technically acceptable procurement.
The Court of Federal Claims found that BMMI did not show that DLA failed to follow any specific evaluation requirement. To have merit in its argument, it should have sought to show that the Agency simply failed to follow one or more of the non-priced technical evaluation factors in its source selection process.
Does The Agency Have to Choose a Higher Priced and More Technically Superior Proposal?
No. BMMI focused on its stronger technical evaluation. Then argued that the government should have paid a higher price because of its superior technical evaluation scores.
The court simply leaned towards DLA’s source selection discretion to choose, or not to choose, to pay a higher premium. When challenging the government source selection decision for a best value procurement and lowest price, contractors must remember that GAO looks at the scope of agency discretion to choose among qualified offerors. This is particularly broad when a contract award decision is based on an RFP best value evaluation.
Under DOD source selection procedures, the agency’s decision to choose a lower priced and more technically inferior proposal is a business decision that GAO tends not to question. Unless you can show that the agency failed to follow the solicitation criteria, you bid protest may not be fruitful.
- The Court simply does not have the authority to second-guess the Agency’s technical evaluation so long as it was reasonable.
- A higher priced proposal does not guaranty award if the Agency decides that there was nothing to justify the higher premium.
When filing a source selection decision protest and the agency’s best value procurement decision, and its selection of a lower-priced proposal, make sure that you first find an argument that the Agency source selection document missed or seriously diverted away from the technical evaluation criteria. Only then would you have a plausible argument that the agency converted the best value evaluation bid into a lowest price technically acceptable evaluation.
See also information about government pricing for defense contracts, source selection evaluation board decisions or; lowest price technically acceptable source selection process.
For help with a GAO protest under DOD source selection decision and procedures, or one at the Court of Federal Claims regarding the government best value procurement decision, call the bid protest lawyers at Watson & Associates, LLC. Call 1-866-601-5518.