Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Wednesday, April 17, 2013, 8:05 am EST
CW Government Travel, Inc., d/b/a CWTSatoTravel v. United States, No. 12-708 C, April 11, 2013
It is very interesting how the same sentence can be interpreted so differently by different parties. When those parties are the GAO and the Court of Federal Claims, the difference in interpretation can mean the difference between a successful or unsuccessful protest.
Case in point, in September 2012, GAO heard a protest made by CW Government Travel, Inc., d/b/a CWTSatoTravel (“CW”). CW was protesting an agency’s decision to make a single award in a procurement for an indefinite-delivery, indefinite-quantity (“ID/IQ”) contract, rather than make multiple awards including CW as one of the awardees. CW challenged the agency’s determination that CW was not qualified or capable to perform, due to its proposal receiving a technical rating of “Marginal.” In the protest decision, the solicitation’s definition of “Marginal” was scrutinized:
“A marginal proposal does not meet Government requirements necessary for acceptable contract performance, but issues are correctable.”
CW naturally focused on the second part of the definition—“issues are correctable”—and argued that a “Marginal rating” did not mean an offeror was not qualified and not capable of performing the work. GAO disagreed, and instead focused on the first part of the definition finding it to mean a marginal proposal reflected a failure to meet the “requirements necessary for acceptable contract performance.” GAO denied the protest, and CW then brought its protest before the U.S. Court of Federal Claims. Fortunately for CW, the Court had a different interpretation in its decision issued this past week.
At issue in this case is FAR § 16.504, which establishes a general preference in procurements for indefinite-quantity services, for an agency to make multiple awards under a single solicitation to at least two sources. (FAR §16.504(c)(1)(i)). While this FAR provision expresses a general preference for multiple awards, it becomes a mandatory requirement for larger contracts. In any such procurement estimated to exceed $103 million, as in this case, an agency cannot make a single award unless the head of the agency determines in writing that one of the clause’s stated exceptions has been met. (FAR § 16.504(c)(1)(ii)(D)). One of the available exceptions is where the agency determines that “only one source is qualified and capable of performing the work at a reasonable price to the Government.” (FAR § 16.504(c)(1)(ii)(D)(1)(iii)).
The underlying solicitation was issued by the General Services Administration for the award of an ID/IQ contract for travel management services for federal civilian agencies. There were two offerors in the competitive range, CW and Concur Technologies, Inc. In its source selection decision, GSA essentially determined that because Concur’s proposal had a lower price and received a technical rating of “Very Good,” whereas CW’s proposal was higher priced and received a technical rating of “Marginal,” Concur’s proposal was the only qualified and capable source. The agency did note that because the contract exceeded $103 million, it could not make the single award to Concur unless one of the exceptions to FAR § 16.504 were met. Ultimately, GSA determined that the “one source” exception was met, and selected Concur as the sole awardee.
CW challenged the source selection decision, arguing that while its proposal did contain weaknesses, it was not determined to be “Unacceptable.” Rather, GSA assigned CW’s proposal a technical evaluation score of “Marginal,” which according to the definition in the solicitation meant that any issues with the proposal were correctable. CW argued that GSA did not make any finding that CW was not qualified and capable of performing the work, and thus the determination that the “one source” exception applied was incorrect.
The Court agreed with CW, stating that in comparing the two offerors’ proposals with each other, GSA essentially performed an improper cost/technical tradeoff rather than discussing whether CW was qualified and capable of performing the requirements. Focusing on the “issues are correctable” portion of the definition, the Court found that CW’s “Marginal” rating was not consistent with a finding that CW was not qualified and capable to perform the solicitation’s requirements. As a result, the Court found that GSA’s award decision was inconsistent with the FAR, and ordered GSA to conduct a re-evaluation consistent with FAR § 16.504.