Matter of WHR Group, Inc.
Decided: August 30, 2022
Agency: Department of Justice, FBI
Disposition: Protest Sustained
Keywords: Technical Evaluation; Source Selection Decision; Best Value
This case highlights the fact that, often, filing a bid protest is the only way to uncover the improper basis for an award when an Agency does not adequately document its decision. With GAO bid protests, such information is typically uncovered from the Agency Report, available 30-days after the protest is filed. The legal costs associated with filing a protest may be well worth the investment, so the protesting counsel can obtain the agency report and agency records related to the source selection. Here, the protester would not have known the underlying grounds for the improper award without the diligence of legal counsel and filing a protest.
Protesting an award should be a data driven, fact specific, strategically assessed, and appropriately funded decision for any business. General Counsel, P.C. helps our clients reach critical decisions before protesting an unsuccessful award or intervening as a successful awardee, litigating bid protests through to decision, and adapting post-decision internal methods for a more successful acquisitions win plan.
Summary of Facts
WHR Group protests the establishment of blanket purchase agreements (BPA) with BGRS Relocation Inc., RELO Direct, Inc. and Allegiance Government Relocation under a request for quotations (RFQ) issued by the Department of Justice, Federal Bureau of Investigation (FBI), for employee relocation services. The solicitation was issued on January 21, 2022 to holders of General Services Administration (GSA) multiple award contracts pursuant to the procedures of Federal Acquisition Regulation (FAR) subpart 8.4. The RFQ established that BPA award would be made on a best-value tradeoff basis, based on the following evaluation factors, listed in descending order of importance: (1) technical approach; (2) past performance; and (3) price. Under the RFQ, the non-price factors, “individually and combined,” were significantly more important than price.
Six vendors, including BGRS, RELO Direct, Allegiance, and WHR, submitted quotations by the February 21 closing date. An agency source selection evaluation board (SSEB) evaluated vendors’ non-price quotations using adjectival rating schemes that were set forth in the RFQ as follows: outstanding, acceptable, marginal, or unacceptable for the technical approach factor; and high confidence, satisfactory confidence, little confidence, no confidence, or neutral confidence for the past performance factor. The SSEB also identified strengths and weaknesses in the vendors’ quotations in support of the ratings assigned.
The contracting officer, as source selection authority (SSA), concluded that “[d]ue to the similarities amongst vendor ratings for the non-price factors,” the three lowest-priced quotations, i.e., BGRS, RELO Direct, and Allegiance, represented the overall best value to the agency. WHR proposed the next lowest price after the three vendors selected for BPA award. WHR filed this protest.
Basis of Protest
WHR alleges that the agency’s evaluation of vendors’ quotations and award decision were improper. Specifically, WHR argues the agency’s evaluation of its technical approach was improper and the agency’s best-value tradeoff was unreasonable, and essentially converted the basis of award from best-value tradeoff to lowest-price, technically acceptable.
GAO noted that when reviewing a protest challenging an agency’s technical evaluation, GAO will examine the record to determine whether the agency’s evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations.
WHR Technical Approach Evaluation Rating
Agencies must identify the criteria upon which vendors’ quotations will be evaluated on GSA multiple award contracts for orders exceeding the simplified acquisition threshold. Agency’s do not need to disclose in the solicitation the evaluation rating scheme. However, when an agency makes the rating methodology part of the RFQ, the GAO must review the reasonableness of the agency’s evaluation and consistency with the terms of the solicitation.
Here, WHR contends that it should have received a rating of “outstanding,” rather than “acceptable,” under the technical approach factor. WHR points to the fact that the SSEB identified eight separate instances where the vendor’s quotation was found to exceed the RFQ requirements in ways beneficial to the government and did not assess a single weakness to WHR’s quotation. In light of this, GAO found the agency’s assignment of a technical approach rating of “acceptable” to WHR’s quotation to be “unreasonable because the FBI failed to adequately document how it assigned the adjectival rating that it did, in light of the RFQ’s established rating scheme.”
Source Selection Decision
GAO stated that when a procurement conducted pursuant to FAR subpart 8.4 provides for source selection on a best-value tradeoff basis, the SSA must perform a price/technical tradeoff to decide whether one quotation’s technical superiority is worth its higher price. The FAR specifically requires the SSA to document the rationale for any tradeoffs made in the selection for acquisitions that require a statement of work. An agency has broad discretion on price and non-price tradeoffs between price and non-price factors. Yet, a lower-rated, lower-priced quotation must adequately acknowledge and document any significant advantages of the higher-priced, higher-rated quotation.
GAO explained that the record reflects that the SSA unreasonably approached the best-value determination from the perspective that there was little difference between the vendors in these non-price areas because of the assigned adjectival ratings. GAO found the SSA then unreasonably made price the determining factor after the SSA incorrectly concluded that all vendors were essentially comparable for all non-price factors.
GAO also found that the record demonstrates that SSA improperly decreased the relative importance of past performance, thereby unreasonably negating WHR’s past performance advantage. Finally, the record shows the SSA treated the price premiums between WHR and RELO Direct and BGRS as significantly more important than that established by the solicitation. Given the SSA’s misapplication of the relative importance of the solicitation’s stated evaluation criteria, GAO concluded the FBI’s best-value decision was unreasonable, inconsistent with the RFQ’s stated evaluation criteria, and prejudicial to WHR. GAO sustained the protester’s challenge to the source selection decision.
Our Government Contracts Practice Group has extensive experience in government contract law, helping clients solve their government contract problems relating to the award or performance of a federal government contract, including bid protests, contract claims, small business concerns, and teaming and subcontractor relations. If you need more guidance or information, contact Craig Lawless, Senior Counsel in our Government Contracts practice area at General Counsel, P.C., 703-266-1865.