Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, September 28, 2012, 10:29am EDT – Last Modified: Friday, September 28, 2012, 10:55am EDT
When agencies say they will consider a combination of factors — including both price and nonprice factors — in making an award, contractors should be diligent in assuring that the agency gives meaningful consideration to all the significant factors in the solicitation, says FedBiz Daily contributor Lee Dougherty.
Protesting contractors: Glotech Inc., Rockville
Contracting agency: U.S. Agency for International Development
Issue: Whether meaningful consideration of price is required, even in a Federal Supply Schedule procurement.
Decision:Sustained by the Government Accountability Office, Aug. 21, 2012.
Postmortem: Glotech protested the award of a blanket purchase agreement (BPA) to seven conpanies (all seven are local companies) holding Federal Supply Schedule 70 contracts for information technology supplies and services. The USAID issued a request for quotations informing potential offerors that quotes would be selected on a best-value basis, considering price and six nonprice factors.
In the RFQ, the agency told offerors about the information that would be required for evaluation of price. The description was vague and led offerors to request a clarification. USAID responded that “it would not establish a total cost/price or level of effort.”
Glotech’s protest argued that USAID failed to consider price. As a preliminary matter, USAID moved to dismiss Glotech’s protest on the ground that it was untimely. I have written recently in Battle Lines about the need to protest issues with a solicitation before submitting your proposal. In this case, there was some question as to whether USAID’s clarification made it clear that it would not consider price in its evaluation of quotes. The GAO said the timeliness issue was a “close question” but denied the dismissal and made a recommendation on the merits.
USAID argued that a best-value trade-off is not applicable to the issuance of multiple BPAs. After a thorough review of Federal Acquisition Regulation, Part 8, the GAO determine that “USAID’s arguments are at odds with the clear requirements for these instruments [BPAs] set forth in the FAR.”
The General Services Administration also provided guidance to the GAO, and although the GSA “deferred to [the GAO]” it did indicate that the RFQ “implied that more was required … than relying on the base pricing in a GSA schedule.”
According to USAID in its RFQ, the agency would “include cost/price as a significant factor in a tradeoff decision.” Failure to actually conduct a best-value trade-off was inconsistent with the terms of the RFQ. The GAO determined that USAID “gave no meaningful consideration to price” in violation of the FAR and “failed to make a best value decision.”
A best-value trade-off, by its very nature, requires a weighing of technical approach compared with price. This is well-established, yet agencies frequently deviate from this requirement and argue to the GAO that it is not required. To decide between two categories you must meaningfully consider two categories.
USAID did not meaningfully consider price. Therefore, there was no trade-off and not a best-value selection, which was contrary to the solicitation.
Glotech was very fortunate that its protest was not dismissed in this case. Far more often when an offeror protests an ambiguity in the solicitation the protest will be dismissed.