Link: GAO Decision
Protestor: Emergint Technologies, Inc.
Agency: Department of Health and Human Services
Disposition: Protest Sustained.
- Protest is sustained where solicitation for the issuance of a fixed-price time-and-materials task order did not provide for a price realism evaluation, yet the agency discounted the protester’s lower price in its best value tradeoff decision based on its conclusion that the protester’s low pricing posed performance risk and reflected a lack of understanding of the agency’s requirements.
- Protest of agency’s technical evaluation is sustained where the record does not support weaknesses identified in the protester’s proposal.
General Counsel PC Highlight:
Emergint Technologies, Inc. protested the issuance to DB Consulting Group, Inc. of a task order for information services support for CDC’s National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP) in Atlanta, Georgia. The RFTOP contemplated award to the contractor whose proposal was considered most advantageous to the government, with five technical factors considered more important than price. The TEP prepared a consensus report, assigning each proposal an overall score and summarizing each proposal’s strengths and weaknesses, but without indicating which, if any, of the strengths and/or weaknesses were significant. The TEP expressed a concern regarding Emergint’s proposed labor rates, noting that it was lower than the government estimate. The TEB chair identified five advantages to DB’s proposal and three disadvantages to Emergint’s proposal. The CO selected DB to perform the task order, noting that the cost advantage held by Emergint was outweighed by DB’s technical superiority.
The GAO first sustained Emergint’s argument that the agency in effect performed a price realism analysis, even though the RFTOP did not provide for a realism evaluation. It noted that, although it is within an agency’s discretion to provide for a price realism analysis in awarding a fixed-price contract, offerors must be given reasonable notice that a business decision to submit low pricing will be considered as reflecting on their understanding or the risk associated with their proposals. The RFTOP only stated that prices would be evaluated for “reasonableness,” and the GAO rejected the agency’s arguments that certain other provisions suggested that it would conduct a price realism analysis.
The GAO also agreed with Emergint that several of its evaluated weaknesses lacked a reasonable basis. The GAO noted that Emergint’s proposal directly contradicted the agency’s finding that Emergint did not clearly address whether the government would be responsible for certain tasks, and that the RFTOP did not require information in the management plan which the agency had faulted Emergint for including instead in its staffing plan. Finally, the GAO was not persuaded by the agency’s argument that considering information in the appendices to Emergint’s proposal would have been unfair to other offerors. It pointed out that DB had also included significant information required to be provided as part of its technical proposal in an appendix, and the evaluators had not identified this as a weakness.
If an agency contemplates conducting a price realism analysis as part of its proposal evaluation process, it is required to indicate as such in the solicitation, so that offerors are on notice as to how low pricing may be considered by the agency. Disappointed offerors should always request a debriefing so as to better understand the reasoning behind the agency’s source selection decision. If the agency expressed concern that the disappointed offeror’s pricing was too low as to indicate a lack of understanding of the requirement, the offeror should check whether such a consideration was within the terms of the solicitation. If it was not, there may be sustainable grounds to protest.