Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Agency’s decision to establish a revised competitive range and conduct discussions with small business concerns whose proposals were deemed the most highly rated rather than withdraw the set-aside and reissue the solicitation on an unrestricted basis was reasonable under the circumstances; the exclusion of technically marginal proposals from the competitive range, while permissible, is not required.
General Counsel P.C. Highlight:
Cambridge, the apparent awardee which was later determined ineligible for award under the applicable small business size standard, challenges the agency’s decision to establish a revised competitive range rather than cancel and reissue the solicitation on an unrestricted basis. GAO states that the decision to establish a competitive range and the determination whether a proposal should be included therein is principally a matter within the sound judgment of the procuring agency. The significance of the weaknesses and/or deficiencies in an offeror’s proposal, within the context of a given competition, is a matter for which the procuring agency is itself, the most qualified entity to render judgment. GAO will review that judgment only to ensure it was reasonable and in accord with the solicitation provisions; a protester’s mere disagreement with an agency’s judgment does not establish that the judgment was unreasonable.
GAO finds Cambridge’s argument that the agency improperly established a revised competitive range comprised of allegedly technically unacceptable proposals without merit. Under the regulatory scheme applicable here, the contracting officer was required to establish a competitive range comprised of all of the most highly rated proposals based on the “ratings of each proposal against all evaluation criteria.” Of the remaining small business offerors, the initial proposals submitted by Chugach and Sim-G were determined to be the most highly rated based on the overall technical rating of marginal. That is, the agency evaluators concluded that any errors or deficiencies in the proposals could be corrected through discussions without a major rewrite or major revision of proposals.
Moreover, contrary to the protester’s view, the solicitation did not require the inclusion of only technically acceptable proposals in the competitive range. Rather, as noted above, section M of the solicitation simply mandated that to be considered for award, proposals had to receive at least an acceptable rating under the non-price evaluation factors. In any event, as the agency and Chugach both argue, based on the initial evaluation of proposals the two offerors included in the revised competitive range were determined capable of performing the required effort, and Cambridge has not shown otherwise. Since the record indicates that neither Chugach’s or Sim-G’s initial proposal were rated unsatisfactory under any non-price factor, GAO finds the contracting officer reasonably concluded that the agency could receive offers from these two small businesses at fair market prices if discussions were conducted with both concerns. In short, GAO is not persuaded by, and nothing in the record supports, the protester’s contention that the agency was required to withdraw the set-aside and reissue the solicitation on an unrestricted basis. The protest is denied.