Learn How to Address Exclusion From the Competitive Range Determinations in Bid Protests

competitive range determination process in government contracting bid protestsIf 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:

  1. 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
  2. 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 is where most contractors fail.

What is a Competitive Range? 

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 GAO or COFC 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.

Takeaway

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. 

For government contracting solutions and for more help challenging the government’s competitive range determination process, call our bid protest lawyers at 1-866-601-5518.

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