Link: GAO Decision
Protestor: MVM, Inc.
Agency: Department of Justice
Disposition: Protest Denied.
- Agency reasonably determined that awardee’s comparatively low extended pricing did not pose an unacceptable risk for recruitment and retention where proposed rates for labor categories that made up majority of anticipated effort were near government estimates for those rates and where awardee’s proposal was assigned numerous strengths and relatively high ratings under recruitment and retention evaluation subfactors.
- Agency was not required to inform protester during discussions that its pricing was high relative to awardee’s pricing where record reflects that agency did not consider protester’s pricing excessive or unreasonable.
- Agency’s selection of a lower-rated, lower-priced proposal for award is unobjectionable where agency reasonably determined that higher rating of protester’s proposal under the solicitation’s non-price evaluation factors did not outweigh the lower price of awardee’s proposal.
General Counsel PC Highlight:
MVM, Inc. protested the award to AllWorld Language Consultants, Inc. of a contract for linguist services at DEA field offices in the southeast region of the United States and the Caribbean. Award was to be made on a best value basis, and the RFP provided that unreasonable or unbalanced prices could be grounds for eliminating a proposal from the competition. After initial evaluations, the source evaluation board (SEB) established a competitive range of four offerors, including MVM but not AllWorld. AllWorld protested on the grounds that it was unreasonably excluded out of concern that its pricing was unreasonably low. The agency took corrective action, adding AllWorld to the competitive range, engaging in discussions, and accepting final proposal revisions (FPRs) from the competitive offerors. The SEB recommended MVM for award, expressing concern about AllWorld’s ability to recruit and retain linguists at its hourly rates. The source selection authority (SSA) determined not to follow the SEB’s recommendation, finding it not in the government’s best interests to pay a $72 million premium for MVM’s only somewhat higher rated proposal.
The GAO first rejected MVM’s arguments regarding the agency’s evaluation of AllWorld’s ability to recruit and retain qualified personnel. The GAO noted that the SSA made an independent comparison of AllWorld’s pricing to the IGCE, and chose not to adopt the SEB’s view that AllWorld’s pricing was indicative of a significant risk. Pointing out that SSAs have broad discretion in determining the manner and extent to which technical and cost evaluation results are used and may disagree with the findings of lower-level evaluators, the GAO found that the record adequately documents the SSA’s conclusion that AllWorld provided a better value. The GAO then found no merit to MVM’s argument that AllWorld’s pricing was materially unbalanced. Finally, the GAO rejected MVM’s assertion that the agency engaged in unequal discussions by conducting discussions with AllWorld after its inclusion in the competitive range. MVM argued that the agency should have reopened discussions with all offerors, rather than engage in discussions with AllWorld and allow it to submit an FPR after the other competitive offerors had submitted their FPRs. The GAO pointed out that the FPRs were not evaluated until all had been received and that AllWorld had received the same amount of time to revise its proposal as other offerors, and therefore MVM failed to demonstrate how it was prejudiced by the differing cutoff dates.
In awards made on a best-value basis, offerors must remember that an agency may select a lower-rated, lower-priced proposal if it is in the best interests of the government. With current pressure to cut costs and stretch budgets Agencies will likely not pay a high premium when a lower price is acceptable. It is likely that as a result there will be more frequent protests based on a best value being converted to a lowest priced technically acceptable offer. As long as the agency makes a rational decision consistent with the evaluation criteria, disappointed offerors will be unsuccessful should they elect to protest the selection. Furthermore, disappointed offerors must remember that the SSA has broad discretion to disagree with lower-level evaluations, so long as the SSA’s conclusion is adequately supported by the record.