Link: GAO Opinion
Agency: Department of Health and Human Services
Disposition: Protest sustained.
Agency may not exclude from the competitive range a proposal that has not been determined technically unacceptable without taking into account the proposal’s price.
General Counsel P.C. Highlight:
The protester argues that both the evaluation of its own proposal and the agency’s competitive range determination were unreasonable. In the latter connection, Arc-Tech contends that the agency failed to consider price in determining the competitive range and instead based its determination as to which proposals were included on an arbitrary technical cut-off score. GAO states that the determination of whether a proposal is in the competitive range is principally a matter within the reasonable exercise of discretion of the procuring agency. In reviewing an agency’s evaluation of proposals and subsequent competitive range determination, GAO will not evaluate the proposals anew in order to make its own determination as to their acceptability or relative merits; rather, GAO will examine the record to determine whether the evaluation was reasonable and consistent with the evaluation criteria. Here, based upon an examination of the record, GAO concludes that the agency’s competitive range determination was unreasonable in that there is no evidence that price was considered in deciding whether a proposal should be included or excluded. In this connection, GAO recognizes that an agency may properly exclude a technically unacceptable proposal from the competitive range regardless of its price. GAO also recognizes that an agency has the discretion to exclude a technically acceptable proposal that is not among the most highly rated proposals where it determines 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. An agency may not exclude a technically acceptable proposal from the competitive range, however, without taking into account the relative cost of that proposal to the government. That is, an agency may not exclude a technically acceptable proposal from the competitive range simply because the proposal received a lower technical rating than another proposal or proposals, without taking into consideration the proposal’s price. Similarly, an agency may not limit a competitive range for the purposes of efficiency on the basis of technical scores alone.
In this case, the record shows that Arc-Tech’s proposal was excluded from the competitive range not because it had been determined technically unacceptable, but because it was not among the most highly rated proposals technically. While the competitive range determination and the technical evaluation panel (TEP) report both label the protester’s proposal unacceptable, neither of those documents provides any explanation for such a finding, and there is no support for it anywhere else in the record. On the contrary, the score sheets of the individual evaluators reflect ratings of [deleted]. In fact, it is apparent from the TEP report–in particular, the statement that the results [of the individual technical evaluations] were averaged to provide a total score to determine whether the company was in the competitive range or not–that the evaluators used the offerors’ technical scores to determine whether their proposals should be included in the competitive range, and that proposals excluded from the competitive range based on their technical scores were, simply as a consequence of their exclusion, labeled unacceptable. Further, there is no indication in the record that the agency considered the protester’s proposed price as part of the competitive range determination. In sum, because the record shows that the agency’s decision to exclude the protester’s proposal from the competitive range was based on its technical score alone–without consideration of its relative cost to the government and without a documented finding that the proposal was unacceptable–the decision was improper, and on that basis we sustain Arc-Tech’s protest. The protest is sustained.