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Inclusion in the Competitive Range Does Not Equal Technical Acceptability

  • By GCPC GovCon Legal Team
  • April 10, 2013
  • Blog Articles
  • 0 Comments

Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC

Date: Wednesday, April 10, 2013, 8:06am EST

Concept Analysis and Integration, LLC, B-406638.3, March 29, 2013
Last week, we discussed the importance of a contractor’s awareness of material requirements in a solicitation, and the consequence for failing to properly address those requirements. This week, GAO addressed a similar issue, only here in the context of the protester’s inclusion in the competitive range. In Concept Analysis and Integration, LLC, the protester argued that by virtue of its inclusion in the competitive range, the agency was precluded from later determining that its proposal was technically unacceptable. GAO denied the protest.

This procurement involves a solicitation issued by the Department of Labor for cloud-based customer relations management software. The solicitation provided for a two-phase competition, with the first phase consisting of an evaluation of offerors’ initial proposals and the establishment of a competitive range consisting of the most highly-rated proposals. Phase 2 would consist of offerors preparing and demonstrating a prototype of their proposed system. The solicitation made clear that the cloud platform must be accessible by using only a web browser, and could not require the installation of any additional software.

The protester’s proposal did not meet this last requirement, as its system required installation of additional software in order to function. However, this was not clear to the agency during the Phase 1 evaluations, as the protester’s proposal was somewhat vague on the issue. The agency included the protester in the competitive range, and invited it to participate in the Phase 2 demonstrations. It was during the Phase 2 portion of the process that the agency determined the system proposed by the protester did not meet the solicitation’s requirements. The agency found that the protester’s proposal was not technically acceptable, and excluded the protester from further competition.

The protester challenged its exclusion, arguing that all offerors in the competitive range should have been deemed technically acceptable based solely on the fact that the proposals were included within the competitive range. It alleged that by including its proposal in the competitive range, the agency misled the protester into believing its proposal was technically acceptable.

GAO denied the protest, stating that the protester’s argument was based on a faulty premise. Merely making it to the competitive range stage of a procurement does not excuse an offeror for failing to meet solicitation requirements. An agency can later exclude a proposal from further consideration if it discovers that the offeror no longer has a reasonable chance at receiving an award. Here, the protester’s proposed system clearly did not meet the requirements of the solicitation, and thus GAO found that the agency’s eventual exclusion of the protester was reasonable.

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