Learn How to Address Agency Exclusion From the Competitive Range Determinations in Government Contracting Bid Protests
If your company has been excluded from the competitive range during a federal bid, there are some issues to watch out for. Just like any bid protest case, it’s all about what is in the agency record and what you can prove.
For example, in the Matter of Pinnacle Sols., Inc., B-414360, May 19, 2017, 2017 CPD ¶ 172 at 12-13 (Which was a bid protest challenge to the government’s competitive range determination, GAO agreed with the protestor because:
- The evaluation record did not reasonably support the assessment of weaknesses, reflected apparent disregard of aspects of protester’s proposal, and was based on unstated evaluation criteria, and
- the competitive range determination improperly relied on comparison of point scores and on the contracting officer’s unsupported speculation about whether holding discussions with the protester would result in assessment of a significant strength to a revised proposal.)
Filing a bid protest is available as a remedy. However, understand the various nuances to protesting a competitive range determination letter is where most contractors fail.
What is a Competitive Range Determination ?
When there are many responses to government contract RFPs, the Agency has to have a way of narrowing the number of bids that it wants to consider seriously. The final pool of proposals is called a competitive range. When there is a competitive procurement using FAR Part 15, the agency Contracting Officer will draft a memo that documents the competitive range determination process and the basis for reaching the final agency decision.
The process is required when using the competitive negotiated acquisition procedures outlined in FAR Part 15. However, a formal determination is not necessary under simplified acquisition procedures, described in FAR Part 13.
The competitive range determination results from comparing each proposal to the stated evaluation criteria. Here, the government looks at the most highly-rated proposal for inclusion in the range.
Many contractors find the agency’s competitive range determination in government contracting at odds with their expectations and file a bid protest to challenge the government’s evaluation.
- The Agency typically notifies you in writing that you are excluded from the competitive range.
- When this happens, you must act quickly to protect your rights.
Filing a Bid Protest
After making a determination that the agency’s competitive range determination process is flawed, you must promptly file a bid protest to preserve your rights. Just disagreeing with the agency will get the protest thrown out. You must provide detailed factual and legal basis of what the agency did wrong.
A common problem for bidders occurs when the solicitation requires them to “demonstrate a clear understanding of what is necessary to meet the technical requirements of the proposal.” This leaves the agency with broad discretion that is based upon subjective review.
In a bid protest, contractors must realize that if the thrust of their argument is that the agency should have come to a different conclusion, the protest will more than likely fail. The courts will not second-guess the agency’s competitive range unless there is clear error or the agency fails to follow some material aspect of the solicitation’s requirements.
When challenging the competitive range determination process in government contracting, be mindful that the contracting officer also typically makes a determination as to whether any deficiencies found would require significant revisions to your proposal or whether it is unlikely that the various deficiencies could be corrected through discussions.
- Failure to make such finding is not determinative in a bid protest.
- The protestor must find that the agency acted unreasonably or failed to follow the evaluation requirements.
Government’s Response in a Bid Protest: The government contracting agency will attack any general arguments that you make in the bid protest. Besides, if your technical proposal simply has boilerplate language and no particular detail, you run the risk of being excluded from the competitive range.
- Give the agency great detail in your technical proposal.
- You also have to show that but for the agency’s mistake, you would not have received the deficiency that led to the adverse competitive range decision.
Competitive Range Determination and Material Failures in Technical Proposals
- Material omissions almost always lead to denial of a GAO bid protest.
- By having a compliance matrix, you can reduce the risk of noncompliance.
The following language is mentioned below for your convenience. This is a direct quote from FAR 15.306 at Hill AFB.
FAR 15.306 — Exchanges With Offerors After Receipt of Proposals.
(a) Clarifications and award without discussions.
(1) Clarifications are limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.
(2) If award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors.
(3) Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions. If the solicitation contains such a notice and the Government determines it is necessary to conduct discussions, the rationale for doing so shall be documented in the contract file (see the provision at 52.215-1) (10 U.S.C. 2305(b)(4)(A)(ii) and 41 U.S.C. 3703(a)(2)).
(b) Communications with offerors before establishment of the competitive range. Communications are exchanges, between the Government and offerors, after receipt of proposals, leading to establishment of the competitive range. If a competitive range is to be established, these communications —
(1) Shall be limited to the offerors described in paragraphs (b)(1)(i) and (b)(1)(ii) of this section and —
(i) Shall be held with offerors whose past performance information is the determining factor preventing them from being placed within the competitive range. Such communications shall address adverse past performance information to which an offeror has not had a prior opportunity to respond; and
(ii) May only be held with those offerors (other than offerors under paragraph (b)(1)(i) of this section) whose exclusion from, or inclusion in, the competitive range is uncertain;
(2) May be conducted to enhance Government understanding of proposals; allow reasonable interpretation of the proposal; or facilitate the Government’s evaluation process. Such communications shall not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal. Such communications may be considered in rating proposals for the purpose of establishing the competitive range;
(3) Are for the purpose of addressing issues that must be explored to determine whether a proposal should be placed in the competitive range. Such communications shall not provide an opportunity for the offeror to revise its proposal, but may address —
(i) Ambiguities in the proposal or other concerns (e.g., perceived deficiencies, weaknesses, errors, omissions, or mistakes (see 14.407)); and
(ii) Information relating to relevant past performance; and
(4) Shall address adverse past performance information to which the offeror has not previously had an opportunity to comment.
(c) Competitive range.
(1) Agencies shall evaluate all proposals in accordance with 15.305(a), and, if discussions are to be conducted, establish the competitive range. Based on the ratings of each proposal against all evaluation criteria, the contracting officer shall establish a competitive range comprised of all of the most highly rated proposals, unless the range is further reduced for purposes of efficiency pursuant to paragraph (c)(2) of this section.
(2) After evaluating all proposals in accordance with 15.305(a) and paragraph (c)(1) of this section, the contracting officer may determine that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted. Provided the solicitation notifies offerors that the competitive range can be limited for purposes of efficiency (see 52.215-1(f)(4)), the contracting officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals (10 U.S.C. 2305(b)(4) and 41 U.S.C. 3703).
(3) If the contracting officer, after complying with paragraph (d)(3) of this section, decides that an offeror’s proposal should no longer be included in the competitive range, the proposal shall be eliminated from consideration for award. Written notice of this decision shall be provided to unsuccessful offerors in accordance with 15.503.
(d) Exchanges with offerors after establishment of the competitive range. Negotiations are exchanges, in either a competitive or sole source environment, between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal. These negotiations may include bargaining. Bargaining includes persuasion, alteration of assumptions and positions, give-and-take, and may apply to price, schedule, technical requirements, type of contract, or other terms of a proposed contract. When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions.
(1) Discussions are tailored to each offeror’s proposal, and must be conducted by the contracting officer with each offeror within the competitive range.
(2) The primary objective of discussions is to maximize the Government’s ability to obtain best value, based on the requirement and the evaluation factors set forth in the solicitation.
(3) At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award. However, the contracting officer is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of contracting office judgment.
(4) In discussing other aspects of the proposal, the Government may, in situations where the solicitation stated that evaluation credit would be given for technical solutions exceeding any mandatory minimums, negotiate with offerors for increased performance beyond any mandatory minimums, and the Government may suggest to offerors that have exceeded any mandatory minimums (in ways that are not integral to the design), that their proposals would be more competitive if the excesses were removed and the offered price decreased.
(5) If, after discussions have begun, an offeror originally in the competitive range is no longer considered to be among the most highly rated offerors being considered for award, that offeror may be eliminated from the competitive range whether or not all material aspects of the proposal have been discussed, or whether or not the offeror has been afforded an opportunity to submit a proposal revision (see 15.307(a) and 15.503(a)(1)).
(e) Limits on exchanges. Government personnel involved in the acquisition shall not engage in conduct that —
(1) Favors one offeror over another;
(2) Reveals an offeror’s technical solution, including unique technology, innovative and unique uses of commercial items, or any information that would compromise an offeror’s intellectual property to another offeror;
(3) Reveals an offeror’s price without that offeror’s permission. However, the contracting officer may inform an offeror that its price is considered by the Government to be too high, or too low, and reveal the results of the analysis supporting that conclusion. It is also permissible, at the Government’s discretion, to indicate to all offerors the cost or price that the Government’s price analysis, market research, and other reviews have identified as reasonable (41 U.S.C.2102 and 2107);
(4) Reveals the names of individuals providing reference information about an offeror’s past performance; or
(5) Knowingly furnishes source selection information in violation of 3.104 and 41 U.S.C. 2102 and 2107.
(a) If an offeror’s proposal is eliminated or otherwise removed from the competitive range, no further revisions to that offeror’s proposal shall be accepted or considered.
(b) The contracting officer may request or allow proposal revisions to clarify and document understandings reached during negotiations. At the conclusion of discussions, each offeror still in the competitive range shall be given an opportunity to submit a final proposal revision. The contracting officer is required to establish a common cut-off date only for receipt of final proposal revisions. Requests for final proposal revisions shall advise offerors that the final proposal revisions shall be in writing and that the Government intends to make award without obtaining further revisions.
The competitive range process in government contracting can cripple a bidder’s chance of winning the contract. Disagreeing with the agency’s outcome can get your bid protest thrown out if you do not articulate what the agency did wrong.