Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Friday, September 20, 2013, 4:07pm EST
Alliance Worldwide Distributing, LLC, B-408491, September 12, 2013
Some studies have shown that the English language has over one million different words, so it is difficult to imagine that there are limits to the number of descriptive terms we can use to describe the quality of a product. However, it’s not uncommon for people to use the same words to describe completely different products. For example, burger lovers might describe hamburgers from both Five Guys and Shake Shack to be “delicious,” but forced to choose, most people instantly rate one delicious burger as superior to the other. We may use the same word to rate the quality, but that does not make them equal.
This phenomenon is prevalent in government contracting, as well. Contracting agencies generally use a limited number of descriptive terms to evaluate proposals, for example: marginal, satisfactory, good, outstanding, etc. But like in the hamburger example above, there are often varying degrees within the chosen adjective which affect how proposals receiving identical ratings are ranked. This was the case in Alliance Worldwide Distributing, LLC.
In Alliance, the U.S. Marshalls Service issued an RFQ for towing, maintenance, disposal and storage services for forfeited and seized vehicles. The RFQ informed offerors that award would be made on a best value basis, considering two technical factors—technical capability and past performance, which, when combined, were equal with price. The awardee and the protester were the only two companies to submit proposals.
Both the awardee and the protester received identical technical scores, both receiving a rating of “satisfactory” for technical capability, and “outstanding” for past performance. The protester offered the lower price, coming in approximately 5% lower than the awardee. The agency determined that the awardee offered the best value to the government despite its slightly higher price. The protester challenged this decision, arguing that because the technical ratings between the two companies were identical, and it offered a lower price, its proposal represented the overall best value for the agency, and should have been selected for award.
GAO disagreed with the protester, and denied the protest. The record showed that in its source selection decision, the agency acknowledged the identical technical ratings, but discussed the ways that the awardee’s ratings were actually superior. The technical capability factor, in which both offerors received identical “satisfactory” ratings, was actually made up of several subfactors. The awardee received three “very good” and ten “satisfactory” ratings on the technical capability subfactors, while the protester received eleven “satisfactory” ratings, and two “marginal” ratings. Similarly, the awardee’s “outstanding” rating on the past performance factor was based on three past performance references, whereas the protester’s “outstanding” rating was based on only one reference.
It is accepted by GAO that just because proposals receive the same adjectival ratings, it does not mean the proposals are of equal quality. In this case, GAO found that the agency properly considered the specific differences in the two proposals, and reasonably determined that the awardee’s proposal offered significant advantages justifying the 5% price premium.