COFC Bid Protest Decisions Can Favor Contractors

During a COFC  bid protest, an agency will not prevail when it is shown that the agency did not comply with its evaluation scheme as outlined in the solicitation. The Court of Federal Claims(COFC) COFC Bid Protest Decisionruled for the bid protestor because of the agency’s faulty evaluation scheme which included:

  • Weighting Scheme in Tradeoff Analysis Different from Scheme in Solicitation
  • Tradeoff Analysis Based on Flawed Past Performance
  • Ratings and Other Error
  • The Agency’s Negative PPQ Regarding HSA’s Performance as the Incumbent Contractor
  • Factual Errors in Past Performance Ratings

The bid protest case revealed that the SSD, however, conflated evaluation factors and sub-factors in the single paragraph explaining the Agency’s tradeoff analysis. Thus, the tradeoff analysis assumed, contrary to the solicitation, that the three evaluation “sub-factors” were Management Plan (deemed the “highest and most influential technical subfactor”), Transition Plan (deemed “the second highest important subfactor”), and past performance (deemed “the third highest critical subfactor”).

In its CFOC bid protest decision the court also found that although the evaluation criteria weighting scheme in the trade-off analysis paragraph is not easily deciphered. The Agency appears to have conducted its tradeoff analysis using three non-price evaluation criteria, whether these are termed factors or subfactors, listed here in descending order of importance: Management Plan, Transition Plan, and Past Performance.

This is not the weighting scheme outlined in the solicitation and, therefore, constitutes an arbitrary and improper evaluation scheme. Because the Agency’s best value decision is based on an assessment plan that differs from that disclosed to offerors, the best value award is invalid.

The court also found that the public interest is best served by enjoining the award to VSI, the awardee. The Agency’s award decision did not have a rational basis. Such award decisions destroy the public trust in government contracting and deprive the government of the benefits of full and open competition. See, e.g., Metcalf Constr.Co. v. United States, 53 Fed. Cl. 617, 645 (2002) (noting the twin goals of preserving “public confidence and competition in the federal procurement process”) (citation omitted).

Because all four factors favor injunctive relief in this protest, the award to VSI must be overturned. The COFC ordered the set aside of the award of Contract but also gave the agency some options.  The Court noted that the Agency, may, at its option, choose not to procure this requirement through Solicitation No. SAQMMA10-R-0331, and may issue a new solicitation. See the entire ruling BayFirst Solutions, LLC v. United States, No. 11-516 C (Jan. 9, 2012)Find our how to handle a protest based upon undisclosed government estimates.

See How We Can Help You in Bid Protest Cases

For more information or assistance with your COFC bid protest, call Watson & Associates, LLC at 1-866-60-5518.

Contact a government contracts attorney.

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