Link: GAO Opinion
Agency: U.S. Patent and Trademark Office
Disposition: Protest denied.
1. Protest that statement by agency during discussions–that price below representative current contract price may create performance risk–misled protester into not lowering its price in revised proposal is denied; statement did not prohibit offerors from proposing a price below specified level but, rather, provided offerors with opportunity to explain how they would be able to perform at price below that level.
2. Protester is not interested party for purposes of challenging evaluation of awardee’s proposal where record shows that, even if protest were sustained, an intervening offeror, not protester, would be next in line for award.
General Counsel P.C. Highlight:
EIS maintains that the agency misled it during discussions. GAO states that a procuring agency may not coerce or mislead an offeror during discussions, including with respect to its price.
The agency did not mislead EIS. The language of the discussion question, on which EIS’s argument is predicated, did not prohibit offerors from submitting a price below the Representative Current Contract Price (RCCP) or indicate that a price lower than the RCCP would automatically be considered a performance risk. Rather, the plain language of the question alerted offerors that, if they proposed a price below the RCCP, they should explain how they would be able to perform and hire and retain qualified personnel at that price. Rather than lowering its price and providing the invited justification, EIS chose not to significantly reduce its price in its final proposal revision (FPR). This action was an exercise of EIS’s independent business judgment and in no way suggests misleading or otherwise improper discussions.
EIS also asserts that the agency unreasonably evaluated the performance risk inherent in the awardee’s low labor and overhead rates, and that the awardee’s proposal should not have been rated above average under the management factor. GAO states that only an interested party may protest a federal procurement; that is, a protester must be an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. Where, as here, there is an intervening offeror that would be in line for award if the protester’s challenge to the award were sustained, the protester’s interest is too remote to qualify it as an interested party.
The record clearly shows that EIS’s and the awardee’s FPRs were the highest and lowest priced, respectively, and were ranked second and third technically. A third offeror’s proposal was the highest technically ranked, with two outstanding and two above average ratings, and also was priced lower than EIS’s. This being the case, that offeror, not EIS, would be next in line for award if this aspect of EIS’s protest were sustained. Accordingly EIS is not an interested party to challenge the award. The protest is denied.