• LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411

Bid Protest Weekly
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us

Clark/Foulger-Pratt JV, B-406627, B-406627.2, July 23, 2012

  • By GCPC GovCon Legal Team
  • August 8, 2012
  • Cost-Technical Trade-OffDocumentation of Evaluation

Link: GAO Decision

Protestor: Clark/Foulger-Pratt JV

Agency: Department of State

Disposition: Protest Sustained.

_____________________________________________________________________________________________________

GAO Digest:

  1. In a negotiated procurement which provided for award on a best value basis, a source selection official’s (SSA) selection of a lower-priced proposal over a higher rated proposal on the basis that the two offers are essentially technically equal is not reasonable, where the SSA’s judgment as to why the two offers are essentially equal is not adequately explained in the record and otherwise appears inconsistent with the contemporaneous evaluation record.
  2. Protest challenging the awardee’s increased evaluation ratings is sustained, where there is inadequate documentation to establish why the awardee’s ratings were increased.

General Counsel PC Highlight:

Clark/Foulger-Pratt JV (Clark/F-P) protested the award to B.L. Harbert International, LLC of a contract for pre-construction services and construction of a new embassy in London, England. The procurement was conducted in two phases: firms would pre-qualify in Phase I, and then pre-qualified firms would receive the RFP and be invited to submit proposals under Phase II. During Phase I, firms were evaluated under six factors, and had to demonstrate experience with projects of similar cost and complexity, as well as pre-construction Early Contractor Involvement (ECI) services. All six firms who submitted pre-qualification packages advanced to Phase II. The RFP provided for award of a “fixed-price, incentive-successive” contract on a best-value basis. Although the RFP informed offerors that the agency would “evaluate the extent to which the past and present performance of the offeror demonstrates conformance to specifications and compliance with contract terms and conditions,” offerors were not instructed to provide any additional past and present performance information in their proposals beyond that submitted in Phase I.

After viewing the TEP’s consensus evaluation report, the SSA decided to conduct both written and oral discussions. After accepting revised proposals, the TEP improved several of Harbert’s ratings and stated, without further explanation, that Harbert had corrected the weaknesses identified. The TEP also found that Clark/F-P had corrected its weaknesses, but did not change any of Clark/F-P’s ratings. The TEP, even after meeting with the SSA to discuss their differing opinions, was unable to reach a consensus as to which firm to recommend for award. Two best value recommendations were prepared, with a majority of the TEP (three voting members and the non-voting chair) recommending the higher-rated, higher-priced proposal of Clark/F-P be selected. After reviewing the two recommendations, along with the initial and final consensus evaluation reports, the SSA concluded that the two proposals were “essentially technically equal” and selected Harbert on the basis of its lowest price.

The GAO agreed with Clark/F-P that the SSA’s determination that the two firms’ proposals were essentially technically equal was inadequately documented in the record. It noted that the record did not explain why the strengths identified in Clark/F-P’s higher rated proposal did not reflect technical superiority that should have been considered in a cost/technical tradeoff analysis, where the RFP provided that technical merit was more important than price. Although the TEP could not agree on a consensus best value recommendation, the GAO found no documentation in the record that any member of the TEP believed that the two proposals were technically equal. Furthermore, strengths attributed by the minority recommendation to Harbert’s proposal did not appear in the TEP initial or final consensus evaluation reports or anywhere else in the contemporaneous evaluation record.

The GAO also upheld Clark/F-P’s challenge to the agency’s evaluation of Harbert’s final revised proposal, where the agency increased Harbert’s ratings from good to excellent under several areas. The GAO agreed that there was no documentation in the record explaining how Harbert’s revisions adequately addressed the weaknesses in its initial proposal. Although the agency had exercised its authority to override the automatic stay on the basis of the best interests of the United States, the GAO recommended that it reevaluate Harbert’s proposal and make a new selection decision. If Harbert’s proposal is found to not reflect the best value, it recommended that the agency terminate the contract and make a new award.

Disappointed offerors should always request a debriefing so as to better understand how its proposal was evaluated and to ensure that the proposal was evaluated in accordance with the stated criteria. While the agency is not required to document every single aspect of their evaluations, there must still be adequate documentation to support their decisions. While merely disagreeing with the agency’s award decision is insufficient to sustain a protest, if there is not adequate support for that decision, the disappointed offeror may have grounds for a protest.

Share

Related Posts

Peak-a-Boo, I see You! – An Agency’s Undocumented Best Value Analysis.

February 1, 2023

Open Sesame! Ya Gotta Get the Agency Report and Records.

October 24, 2022

M&A = “More and Adequate” Agency Records

March 21, 2022

Matter of WRG Fire Training Simulation Systems, Inc.

January 12, 2022

Comments are closed

Search Bid Protest Weekly

Need help with a bid protest?

Call us at: 703-556-0411 Or fill out this form:

Categories

  • 8(a) Sole Source Awards
  • Acknowledging Amendments
  • Adequately Written Proposal
  • Adverse Agency Action
  • Adverse Impact Analysis
  • Agency Tender
  • Alternate or Previously-Approved Product
  • Alternative Dispute Resolution
  • Ambiguity in Solicitation
  • Attorney's Fees
  • Bad Faith in Evaluation
  • Below-Cost Offer
  • Best Value
  • Beyond the Scope
  • Bias
  • Bid and Proposal Costs
  • Bid Bond
  • Bid Compliance
  • Bid Protest Decisions
  • Bid Protest Jurisdiction
  • Bid Protests
  • Bidding Best Practices
  • Blanket Purchase Agreement
  • Blanket Purchase Order
  • Blog Articles
  • Bona Fide Needs Rule
  • Brand Name or Equal
  • Broad Agency Announcement
  • Brooks Act
  • Bundling or Consolidation
  • Buy American Act
  • Cancellation of a Solicitation
  • Capability of Contractor
  • CCR Registration
  • Certificate of Competency (COC)
  • Certification Requirements
  • Changes Clause
  • Clarifications
  • Clear and Convincing Evidence
  • Clearly Meritorious Protest
  • Clerical Error
  • Commercial Item Acquisition
  • Competitive Range
  • Compliance
  • Conflict of Interest
  • Construction Design-Build
  • Construction Services
  • Contract Administration
  • Contract Modifications
  • Contracting Preference
  • Contractor Responsibility
  • Corporate Capability
  • Corrective Action
  • Cost Accounting System
  • Cost Evaluation
  • Cost Realism
  • Cost Reimbursement Contract
  • Cost-Technical Trade-Off
  • Customary Commercial Practice
  • CVE
  • DCAA Audit
  • Debriefing
  • Default Termination
  • Deficient Price Proposal
  • Delivery Order jurisdiction
  • Delivery Schedule
  • Designated Employee Agent
  • Disclosure of Price
  • Disclosure of Source Selection-Sensitive Information
  • Discussions
  • Disqualification
  • Documentation of Evaluation
  • Domestic Production Requirement
  • Education Center Articles
  • Electronic Filing
  • Evaluation Criteria
  • Evaluations
  • Events
  • Executive Order Compliance
  • Experience of Contractor
  • Experience Requirement
  • Facility Clearance
  • Fair Market Price
  • FASA
  • FedBizOpps
  • Federal Prison Industries (FPI)
  • Filing Deadlines
  • Final Evaluation
  • Final Proposal Revisions
  • Financial Responsibility
  • Fixed Price Contract
  • Former Government Employees
  • FSS Contract
  • GAO Bid Protest Review
  • GAO Jurisdiction
  • GAO Standard of Review
  • Government Contracts
  • Government Office Closings
  • Government Surplus Material
  • GSA Lease
  • HUBZone
  • ID/IQ
  • Impaired Objectivity
  • In-Sourcing
  • Incentive Fee
  • Inclement Weather Delay
  • Incomplete Proposal
  • Incorporation by Reference
  • Incumbent Capture
  • Incumbent Status
  • Independent Government Estimate (IGE)
  • Individual Environmental Report
  • Industrial Mobilization
  • Innovations
  • Interested Party
  • Invitation for Bid
  • Invited Contractor
  • Javits-Wagner-O'Day Act
  • Joint Venture
  • Key Personnel
  • Labor Hours
  • Labor Rate Pricing
  • Late Proposals
  • Late Submissions
  • Level of Effort
  • Licensing Requirements
  • Limitation on Subcontracting
  • Liquidated Damages
  • Lost Proposal
  • Lowest Price Technically Acceptable
  • Mail-Box Rule
  • Management Planning
  • Market Research
  • MAS Contracts
  • Material Misrepresentation
  • Material Solicitation Amendment
  • Material Solicitation Terms
  • Meaningful Discussions
  • Micro-Purchase Threshold
  • Minimum Requirements
  • Misleading Discussions
  • Mistake
  • Mitigation Strategy
  • Multiple Awards
  • NAICS Code
  • National Security
  • Negotiation
  • News
  • Non-Procurement Instruments
  • Novations
  • Offeror Representations
  • OMB Circular A-76
  • Option Exercise
  • Oral Presentations
  • Organizational Conflict of Interest (OCI)
  • Page Limitations
  • Past Performance
  • Past Performance Information Retrieval System (PPIRS)
  • Performance Based Standards
  • Permits and Responsibilities
  • Personal Conflicts of Interest
  • Post-Award Changes to the Contract
  • Post-Protest Re-Evaluations
  • Practicable Alternative
  • Pre-Award Protest
  • Pre-award vs. Post-award Requirements
  • Pre-Qualification of Offerors
  • Pre-Solicitation Notice
  • Prejudice
  • Price Calculation Error
  • Price Calculation Error
  • Price Evaluation
  • Price of FSS Task Order Quote
  • Price Realism
  • Price Reasonableness
  • Price Reduction
  • Procurement Announcement
  • Procurement Integrity
  • Product Testing
  • Proposal Acceptance Period
  • Proposal Detail
  • Proposal Evaluation
  • Proposal Extension
  • Proposal Standards
  • Proposals
  • Protest Terms of Solicitation
  • Protester Comments
  • Public-Private Competition
  • Randolph-Sheppard Act (RSA)
  • Rate Tenders
  • Re-Certification of Size Status
  • Reconsideration
  • Reevaluation
  • Reevaluation Standards
  • Reimbursed Attorney's Fees
  • Reimbursement of Protest Costs
  • Rejection of Proposal
  • Relaxation or Waiver of Requirement
  • Relevancy of Past Performance
  • Reliance on the Proposal
  • Remedies
  • Requirements Contract
  • Responsibility
  • Responsiveness
  • Restricted Competition
  • Resumes
  • Revision of Proposal
  • Revision of Proposals
  • Risk
  • Rule of Two
  • SBA Status protest
  • Scope of GAO Review
  • SDVOSB Set-Asides
  • Significant Issue Exception
  • Simplified Acquisition Procedures
  • Site Visit
  • Size Determination
  • Size Protest
  • Small Business Innovation Research (SBIR) Program
  • Small Business Set-Asides
  • Small Business Subcontracting Goals
  • Sole-Source Award
  • Solicitation Amendment
  • Solicitation Requirements
  • Source Approval
  • Source Selection Authority
  • Source Selection Decision
  • Source Selection Plan
  • Sources Sought Notice
  • Staffing Plan
  • State and Local Requirements
  • Status of Forces Agreement (SOFA)
  • Subcontract Protest
  • Subcontractor Experience
  • Suspension and Debarment
  • Taking Exception to RFP Requirements
  • Task Orders
  • Teaming Agreement
  • Technical Acceptability
  • Technical Evaluation
  • Technical Evaluation
  • Termination of Award
  • Terms of the Solicitation
  • Timeliness of Protest
  • Timely Filing
  • Timely Performance
  • Timely Proposal Submission
  • Trade Agreement Act
  • Unbalanced Pricing
  • Unduly Restrictive Terms
  • Unequal Access to Information
  • Unequal Treatment of Offerors
  • Uniform Time Act of 1996
  • Unstated Evaluation Criteria
  • Unusual and Compelling Urgency
  • Use of Appropriated Funds
  • Veterans First
  • VIP Database
  • VOSB Set Asides
  • Wage Determination

Get Help


Talk to an
attorney who
specializes
in bid protests:

+1-703-556-0411
Email

Keep up to date
on bid protest
decisions and
policies:

© 2023 Bid Protest Weekly

  • LinkedIn
  • Google +
  • Twitter
  • Facebook
  • Home
  • Bid Protest Ed Center
  • Blog
  • Topics
  • About Us
  • Contact Us
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us
  • LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411