Non-price factors were more important than price in the RFP. It was not sufficient for the government to simply state that the proposal’s technical superiority is not worth the payment of the price premium; instead, the government must explain specifically why it does not warrant the premium.

The Court concluded that the best-value analysis performed by the SSEB was both irrational and inconsistent with the evaluation scheme set forth in the RFP – and thus contrary to law. The errors had the effect of converting the best-value procurement contemplated under the RFP into one based on low price and mere technical acceptability.

“In a best-value procurement, the relevant question is not whether the lowest-priced proposal will meet the minimum technical requirements set forth in the RFP; rather, the government must determine which proposal represents the best value to the government.”

Contact Karen S. Hindson of Hindson & Melton LLC for your post-award bid protest questions.

The Source Selection Authority (SSA) evaluated the protester’s bid as being very high risk – essentially questioning whether the bidder could successfully perform – in its proposal which relied heavily on much larger subcontractors for key portions of the project.

The complaint includes an allegation of undisclosed evaluation criteria (the SSA commented that the protester did not have a “backup plan” – even though one not required by the RFP). The Court states the Plaintiff must show that the federal procuring agency used a significantly different basis in evaluating the proposals than was disclosed in the solicitation. Here, the comment on the back-up plan was simply a part of the risk assessment of the overall proposal.

The Court reiterated the deference to be given to agency discretion, particularly in negotiated procurements: “The Court of Federal Claims cannot displace a reasonable conclusion of the source selection authority (SSA) in evaluating proposals for a federal government contract merely because the court has identified an alternate conclusion that might have been likewise reasonable, or even preferable.”

NASA’s Source Selection Authority (SSA) selected a technically superior but significantly higher priced offeror. “Although I recognized the evaluation criteria provided that Mission Suitability was more important than price, I could not conduct a ‘typical’ trade-off analysis since I believed there was a low likelihood PlanetSpace could successfully perform the contract.”

This statement in the SSA’s decision gave rise to an allegation that the SSA made a de facto nonresponsibility determination, and made a flawed tradeoff analysis. It is the Contracting Officer who is to make responsibility determinations, not the SSA. The Court remanded the case to the agency on this issue and the legal sufficiency of the trade-off for further development.

To discuss your government contract law issues or questions, contact Karen S. Hindson.

In order to bring a Tucker Act bid protest action in the Court of Federal Claims, a party who has an opportunity to object to the terms of a government contract solicitation must do so prior to the close of the bidding process. Otherwise the right to protest the legality of the solicitation is waived.

An April 22, 2010, United States Court of Federal Claims decision in Shamrock Foods Company v. United States, 92 Fed.Cl. 339, dismissed a post-award bid protest by a non-bidder, finding that the waiver rule precluded raising an objection to a government solicitation after the fact in a post-award bid protest action. Only actual bidders are interested parties with standing to bring a post-award bid protest.

To discuss your government contract bid protest questions, contact Karen S. Hindson of Hindson & Melton LLC.