Link: GAO Decision
Protestor: Cyberdata Technologies, Inc.
Agency: General Services Administration
Disposition: Protest Sustained.
- Protester’s argument that its technically acceptable quotation was excluded from the competition without consideration of price in a best value acquisition for the establishment of blanket purchase agreements (BPA) under the Federal Supply Schedule (FSS) is sustained where Federal Acquisition Regulation subpart 8.4 requires that price be considered in establishing BPAs under the FSS, and where the record shows that the agency “downsized” the pool of vendors, by excluding some of them, like the protester, who were technically acceptable, without consideration of their lower prices.
- Where a protest raises an untimely issue that has not been previously decided and is potentially of widespread interest to the procurement system, the Government Accountability Office (GAO) may consider the issue pursuant to the significant issue exception in its timeliness rules, 4 C.F.R. § 21.2(c) (2012); here, the GAO invokes the significant issue exception and sustains the protest, however, since the protester did not raise the issue in a timely manner–when it clearly could have done so–GAO does not recommend reimbursement of protest costs.
General Counsel PC Highlight:
Cyberdata Technologies, Inc. protested the agency’s decision not to establish a BPA with Cyberdata under an RFQ issued to vendors holding FSS contracts for IT professional services. The RFQ provided for establishment of up to 6 BPAs on a best value basis, and indicated that the TEB would downsize the number of quotations to no more than 12 (6 large and 6 small businesses) vendors based on technical quotation only, with those 12 vendors then giving oral presentations to the agency. Cyberdata was not selected to make an oral presentation, and this protest followed.
The GAO began by pointing out that it generally does not have jurisdiction to hear protests based on alleged improprieties in a solicitation that are apparent prior to closing if not filed prior to closing. It noted, however, that it may consider protests that raise issues significant to the procurement system. Because the GAO had never considered a protest in which the agency ignored the requirement that price or cost be considered before a technically acceptable protest be excluded from consideration in the context of establishing a BPA under the FSS, it concluded that this situation was appropriate for the use of the significant issue exception to the timeliness rules.
The GAO pointed out that, under the FAR, price is the one factor that, at a minimum, must always be considered when determining best value for purposes of establishing a BPA under the FSS. It also noted that, in order to be meaningful, a best value determination requires a weighing of the values and benefits associated with the firm’s technical approach against their associated costs to the government. The GAO therefore sustained the protest on the basis that the agency failed to evaluate quotations consistent with the FAR requirement that BPAs established with FSS contractors must provide the supply or service that represents the best value.
The GAO then addressed Cyberdata’s challenges to 5 of the weaknesses and risks identified by the TEB in its quotation. Although the GAO found one of those challenges to have merit, it noted that the agency had identified 16 weaknesses in Cyberdata’s quotation. The GAO therefore found no basis to sustain Cyberdata’s challenge to the agency’s determination that its proposal was not among the 12 most highly-rated technical quotations. Because the grounds on which the GAO sustained the protest were not timely raised, the GAO did not recommend that Cyberdata be reimbursed its costs of filing and pursuing the protest.
In procurements in which award is to be made on a best value basis, the agency is required to consider price before determining that a quotation is not technically acceptable. However, vendors must pay particular attention to the evaluation criteria as laid out in the RFQ or as clarified in the Q&As; should they fail to object to the terms of the RFQ prior to closing, their protest may be dismissed due to timeliness. Although the GAO did consider Cyberdata’s protest, it only did so under the “significant issue” exception because it had no addressed this issue with regards to BPAs.