Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Protester’s challenge to an agency’s decision to exclude the protester’s acceptable proposal from the competitive range is denied where the contemporaneous record shows that, consistent with the requirements in the Federal Acquisition Regulation, the proposal was evaluated on all of the solicitation’s evaluation criteria, including price, and shows that the agency considered the protester’s relative price.
General Counsel P.C. Highlight:
With respect to the competitive range determination, Medical Staffing raises two issues–that the determination was made without considering all of the evaluation factors, and that the decision was made without regard to price. GAO states that after evaluating all proposals, agencies may establish a competitive range if discussions are to be conducted. Based on the ratings of each proposal against all evaluation criteria, the contracting officer is to establish a competitive range comprised of the most highly rated proposals, unless the competitive range is further reduced for purposes of efficiency pursuant to FAR sect. 15.306(c)(2). This provision permits the contracting officer to limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition provided that the solicitation notifies offerors that this may be done. In reviewing an agency’s evaluation and its competitive range determination, GAO will not reevaluate the proposals; instead, GAO will examine the record to ensure that the evaluation was reasonable and in accordance with the solicitation’s evaluation criteria and applicable statutes and regulations. In this regard, it is axiomatic that cost or price to the government must be included in every RFP as an evaluation factor, and that agencies must consider cost or price to the government in evaluating competitive proposals. This requirement means that an agency cannot eliminate a technically acceptable proposal from consideration for award without taking into account the relative cost of that proposal to the government. Agencies have considerable discretion in determining the appropriate method for taking cost into account, but the method used must provide for a reasonable assessment of the cost of performance of the competing proposals.
The protester’s contention that the agency did not consider all of the evaluation factors, including price, is drawn from both the statement explaining the competitive range decision in the Pre-Negotiation Memorandum, and from the Contracting Officer’s (CO) Statement submitted with the agency report prepared in response to this protest. The CO explains the competitive range decision as follows: “The competitive range was comprised of the proposals that received either an Excellent or a Good overall technical rating. There were 6 offerors in the competitive range for Region 1, 5 offerors in the competitive range for Region 2, and 4 offerors in the competitive range for Region 3. Medical Staffing Joint Venture received an overall ‘Acceptable’ technical [rating] and was therefore not included in the competitive range.”
The protester argues that both of these documents show that the agency did not consider all factors, and did not consider price, in establishing the competitive range. With respect to the first evaluation factor, technical capability, there is no dispute that all of the proposals were evaluated under the overall factor, and under its six subfactors. The results of the evaluation under this factor are set forth in the Pre-Negotiation Memorandum (provided with the agency report at tab 22) at pages 5 through 7. Specifically, for each of the three regions, the SSEB rated Medical Staffing’s proposal(s) acceptable for quality control, retention, corporate experience, and key personnel. Medical Staffing received a good rating for management capabilities and recruitment, and an overall technical rating of acceptable. With respect to the second evaluation factor of past and present performance, Medical Staffing’s proposal was initially rated neutral/high risk. This rating was upgraded during the reevaluation to a rating of acceptable/low risk. With respect to the third factor, financial capability, GAO notes first that the RFP advised offerors that there would be no scoring of this factor, but that the proposals would be evaluated under this factor and the resulting information would be used to determine risk. Consistent with this advice, the contemporaneous record shows that the agency reviewed the offerors’ financial statements to determine if the offerors had adequate financial resources, and that the review resulted in several financial concerns identified by the evaluators that the agency states will be addressed during discussions with the offerors in the competitive range. Finally, with respect to price, the RFP again advised that price would not be scored, but the record shows that the Defense Contract Audit Agency, the contracting officer and the source selection authority reviewed all pricing and compared each offeror’s total and unit prices for each contract line item to determine price realism. The agency determined that prices were fair and reasonable based on adequate competition.
In sum, while GAO thinks the contracting officer could have more clearly articulated why, notwithstanding Medical Staffing’s low price, she concluded that the proposal was not among the most highly rated, and while GAO might have reached a different conclusion given these facts, the record shows that she did acknowledge–in the same document that contains her competitive range decision–that Medical Staffing submitted the lowest priced offer, and acknowledged that Medical Staffing’s price was lower than the government estimate. The record also shows that she made her decision at the end of a review that considered all of the evaluation criteria. Given this record, GAO cannot conclude that the decision to exclude this proposal from the competitive range did not consider relative price, or otherwise violate the FAR requirement that such decisions must be based on a consideration of all of the evaluation factors, including price. The protest is denied.