Pinnacle argues that the exclusion of its proposal from the competitive range was arbitrary and based on a flawed mission suitability evaluation. NASA argues that its decision to exclude Pinnacle’s proposal was reasonable, citing the difference in the firms’ scores and adjectival ratings. The agency also notes the fact that the evaluators did not identify a significant strength in Pinnacle’s initial proposal and the contracting officer’s view that the evaluators were unlikely to identify a significant strength even if discussions were held with Pinnacle. NASA argues even when considering Pinnacle’s $10 million advantage in probable cost, its proposal did not merit further consideration, when compared to Offeror A’s higher-rated proposal.

As noted previously, an agency may eliminate an acceptable proposal from the competitive range where the proposal is not among the most highly rated or has no realistic prospect of award. Environmental Restoration, LLC, supra. As noted above, the narrative in the contracting officer’s competitive range determination (which was echoed in the contracting officer’s statement to our Office) relied on differences in point scores and adjectival ratings (which were derived from the scores) to conclude that Offeror A’s proposal should be included in the competitive range, which Pinnacle’s proposal was excluded. Neither that judgment nor contracting officer’s blanket view that Pinnacle’s proposal would not benefit from discussions, is based on the evaluation or specific aspects of Pinnacle’s approach.

The reliance on point scores or adjectival ratings in making a competitive range decision, as here, is improper. The reasoned judgment required to exclude a proposal from a competitive range cannot rely on the unreasoned distinctions used here: differences in point scores, a lower adjectival rating, and unsupported speculation about whether a future revised proposal would merit assessment of a significant strength. See S&M Prop. Mgmt., B-243051, June 28, 1991, 91‑1 CPD ¶ 615 at 4 (narrowing competitive range on basis of point scores was improper). Accordingly, the exclusion of Pinnacle’s proposal from the competitive range is unreasonable, so we sustain this ground of protest.  (Pinnacle Solutions, Inc. B-414360: May 19, 2017)

Competitive Range Determination

AMEC asserts that even if it had three significant weaknesses under the area of fieldwork, it should have been included in the competitive range because at the time the competitive range was determined, its proposal was evaluated similarly to the proposal of another offeror, identified as offeror A, which was included in the competitive range. Specifically, AMEC notes that at the time the competitive range was determined, it had three significant weaknesses, four weaknesses and two strengths, while offeror A had two significant weaknesses, nine weaknesses, and one strength. AMEC asserts that this demonstrates unequal treatment on the agency’s part. We disagree. AMEC’s proposal was evaluated as unacceptable under the sample task order factor. Since offeror A’s proposal was evaluated as acceptable under that factor, eliminating AMEC from the competitive range, but not offeror A, does not amount to unequal treatment.

AMEC claims that the contracting officer improperly failed to consider its proposed cost which was lower than that proposed by all offerors that were awarded contracts before eliminating its proposal from the competitive range. Comments at 25-28. Here, the solicitation stated that a proposal that was rated unacceptable under any technical factor or unsatisfactory for past performance would not be considered for award. As a result, it was reasonable for the agency to exclude AMEC from the competitive range without considering its proposed cost. See TMC Design Corp., B-296194.3, Aug. 10, 2005, 2005 CPD ¶ 158 at 5 (where the agency reasonably concludes that a proposal is technically unacceptable, it is proper to exclude the proposal from the competitive range without considering price).

The protest is denied.  (AMEC-Gilbane, JV B-413778, B-413778.2: Dec 22, 2016)

ER challenges the exclusion of its proposal from the competitive range, arguing that the EPA failed to evaluate its proposal against all of the solicitation’s evaluation factors. Specifically the protester contends that the agency established the competitive range based solely on price, without considering the protester’s technical proposal. For the reasons discussed below, we conclude that the EPA’s exclusion of ER’s proposal from the competitive range was reasonable and a permissible exercise of the contracting officer’s discretion.

In reviewing an agency’s evaluation of proposals and subsequent competitive range determination, we will not reevaluate the proposals, but 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. Outreach Process Partners, LLC, B-405529, Nov. 21, 2011, 2011 CPD ¶ 255 at 3. Under FAR § 15.306(c)(1), the “contracting officer shall establish a competitive range comprised of all of the most highly rated proposals,” based on “the ratings of each proposal against all evaluation criteria,” unless the range is further reduced for purposes of efficiency. Agencies are not required, however, to retain in the competitive range a proposal that is not among the most highly rated or that the agency otherwise reasonably concludes has no realistic prospect of award. See SDS Petroleum Prods., Inc., B‑280430, Sept. 1, 1998, 98-2 CPD ¶ 59 at 5.

Here, as noted above, the RFP provides that award will be made on a lowest-priced, technically acceptable basis, considering price (base year, plus option years), and technical acceptability (on a pass/fail basis). RFP § M-2. In this regard, the RFP provides that the “Government will select for award, the lowest priced, technically acceptable (LPTA) proposal,” and “intends to review only the lowest evaluated price of the proposals meeting or exceeding the acceptability standard for non-price factors.” Id. § M-2(a). The RFP further provides that, “[i]f that proposal is deemed to be technically acceptable, no further proposal evaluations will be performed,” and that “[o]fferors receiving an Unacceptable rating will not be considered for award.” Id. The solicitation also instructs offerors that “[w]hile the government intends to evaluate proposals and award a contract without discussions,” it “reserve[s] the right to hold discussions with offerors.” Id. at 52.

The record reflects that the contracting officer evaluated all price proposals submitted, and concluded that the two lowest‑priced offers were priced “very close to each other,” while the third lowest‑priced offer, and all other higher-priced offers, were priced “substantially higher.” AR at 2; AR, Tab 9, Competitive Range Det., at 1-2. Specifically, the contracting officer explains that the two lowest-priced offers were priced within 7 percent of each other, whereas the third lowest-priced offer was priced 30 percent higher than the lowest‑priced offer. COS at 2. In addition, the record reflects that ER’s proposal, which was neither the third lowest‑priced proposal, nor the fourth lowest‑priced proposal, was approximately 80 percent higher than the lowest-priced offer. COS at 3; AR, Tab 6, Revised Abstract of Price Offers, at 1. In establishing the competitive range, the contracting officer concluded that this substantial break in the pricing array, “supports a competitive range consisting of the lowest and second lowest price proposals.” AR, Tab 9, Competitive Range Det., at 2. The contracting officer also found that the number of proposals received exceeded the number at which an efficient competition could be conducted, and concluded that “two proposals will permit an efficient competitive range.” Id.

In addition, the record reflects that the agency evaluated the technical proposals of the two lowest-priced offers, and found that each had only one minor technical issue, which the agency believed could be resolved with brief discussions to make either one or both technically acceptable. AR at 2; Tab 12, TEP Evaluation, at 159‑60; Tab 13, TEP Evaluation, at 177. Indeed, on September 21, 2016, two days prior to the date the protester filed this protest, the agency evaluated the revised technical proposal submitted by the lowest-priced offeror in response to discussions, as technically acceptable. COS at 3; AR, Tab 14, TEP Evaluation, at 186-87.

The protester argues that a more in-depth technical evaluation was required for purposes of establishing the competitive range. Specifically, the protester asserts that the agency was required to compare ER’s technical pass/fail ratings to the technical pass/fail ratings received by the two lowest-priced offerors to determine which proposal is “more highly rated.” Protester’s Comments at 1-2. The agency responds that “in a [low-price, technically acceptable procurement], there are no comparative evaluations of technical proposals, no ranking based on technical factors, and no tradeoffs.” AR at 2.

We agree that the agency is precluded by FAR § 15.101-2(b) in lowest‑priced, technically acceptable procurements from conducting tradeoffs, or ranking proposals based on non-price factors. As such, it would have been improper for the agency to evaluate the technical proposals in the manner asserted by ER. Rather, as discussed above, the record reflects that the contracting officer based her determination that ER did not have a realistic chance of receiving the award, as well as the overall competitive range determination, on consideration of both price and non-price factors for all proposals. COS at 2; AR at 4; Competitive Range Det., at 1-2.

As noted above, agencies are not required to retain in the competitive range a proposal that the agency reasonably concludes has no realistic prospect of award, and in fact, even a technically acceptable proposal may be excluded from the competitive range if it does not stand a real chance of being selected for award. See SDS Petroleum Prods., Inc., supra; National Medical Staffing, Inc., B-259700, Mar. 6, 1995, 95-1 CPD ¶ 503 at 3. Indeed, cost or price not only is a proper factor for consideration, but may emerge as the dominant factor in determining whether proposals fall within the competitive range. National Medical Staffing, Inc., supra; B259700, Mar. 6, 1995, 91-1 CPD ¶ 503 at 3; Motorola, Inc., B-247937.2, Sept. 9, 1992, 92-2 CPD P 334 at 9. Here, we find nothing unreasonable or improper regarding the agency’s evaluation and competitive range determination. To the extent ER disagrees with the agency’s evaluation and competitive range determination, this disagreement, without more, is insufficient to establish that the agency acted unreasonably or otherwise establish a basis to sustain the protest. SPAAN Tech, Inc., B‑400406, B‑400406.2, Oct. 28, 2008, 2009 CPD ¶ 46 at 9. (Environmental Restoration, LLC B-413781: Dec 30, 2016)

Finally, Straughan argues that, even if NASA’s evaluation of its proposal was reasonable, the agency’s decision to exclude the protester from the competitive range was nonetheless an abuse of discretion because Straughan had a reasonable chance of being selected for award. The protester alleges that its evaluated weaknesses could reasonably have been addressed during discussions without the need for material proposal revisions. See Protest (June 15, 2015) at 24; Protester’s Comments (July 27, 2015) at 22-23. In this regard, Straughan alleges that it was unreasonable for NASA to assume that the protester could not readily substitute its program manager and business manager as a result of discussions. See Protester’s Comments (July 27, 2015) at 2; Protester’s Supp. Comments (Sept. 2, 2015) at 2-3. Additionally, the protester alleges that NASA failed to reasonably consider Straughan’s competitive proposed total cost in excluding Straughan’s proposal from the competitive range. See Protester’s Comments (July 27, 2015) at 3. We find no basis to sustain the protest.

As an initial matter, we note that Straughan relies on older decisions issued by our Office that interpreted and applied materially different and superseded competitive range requirements under the FAR. See, e.g., Protester’s Comments (July 27, 2015) at 12-13; Protester’s Supp. Comments (Sept. 2, 2015) at 5. The FAR currently requires that the competitive range generally include, with an exception not applicable here, “all of the most highly rated proposals.” FAR § 15.306(c)(1). The FAR’s current requirement, which was promulgated in 1997, materially differs from the previous requirement, which required that the competitive range “include all proposals that have a reasonable chance of being selected for award.” FAR § 15.609(a). The same superseded FAR provision further provided that “[w]hen there is doubt as to whether a proposal is in the competitive range, the proposal should be included.” Id. As our Office has previously explained, “the explanatory preamble published at the time the final version of the FAR Part 15 rewrite was issued makes clear that the intent of the revised language was to permit a competitive range more limited than under the prior ‘reasonable chance of being selected for award’ standard.” SDS Petro. Prods., Inc., B-280430, Sept. 1, 1998, 98-2 CPD ¶ 59 at 5. Additionally, in amending the competitive range requirements in 1997, the FAR Council specifically rejected retaining the previous presumption in favor of retaining a proposal in the competitive range. See FAR; Part 15 Rewrite; Contracting by Negotiation & Competitive Range Determination, 62 Fed. Reg. 51224, 51226 (Sept. 30, 1997).

As addressed above, an agency is authorized to exclude proposals from the competitive range that are not among the “most highly rated.” FAR § 15.306(c)(1). Our review is limited to whether the agency’s evaluation and competitive range determination were reasonable and consistent with applicable procurement statutes and regulations. ABM Gov. Servs., LLC, supra. In this regard, we have held that there is nothing inherently improper in a competitive range of one where the agency has a reasonable basis for its competitive range determination. M&M Investigations, Inc., B-299369.2, B‑299369.3, Oct. 24, 2007, 2007 CPD ¶ 200 at 3; SDS Petro. Prods., Inc., supra.

NASA’s competitive range determination includes a detailed analysis comparing the relative merits of the competing proposals against all three of the evaluation factors. See AR, Tab 13.03, Competitive Range Determination (May 26, 2015), at 3-6. With respect to Straughan, the agency found that the protester was ranked fourth of five under the mission suitability factor, and 250 points behind Offeror A, the highest rated offeror. Id. at 20506. In contrast to Straughan, whose proposed program and business managers resulted in the assessment of a significant weakness, the three higher-rated offerors, including Offeror A, received significant strengths for their respective proposed management teams. Id. at 20506-07. Straughan argues that the agency engaged in unreasonable “pure speculation” in concluding that the protester could not substitute its program manager and business manager for stronger candidates after inclusion in the competitive range. Protester’s Supp. Comments (Sept. 2, 2015) at 3. We find that NASA’s evaluation was reasonable.

Under FAR § 15.306, NASA had the discretion to evaluate Straughan’s initial proposal to determine whether it was among the most highly-rated proposals; as addressed above, we find that the agency reasonably evaluated Straughan’s proposal. See Matrix Gen., Inc., B-282192, June 10, 1999, 99‑1 CPD ¶ 108 at 3 (finding an agency reasonably excluded an acceptable proposal from the competitive range where it did not address certain criteria as well as other offerors, and thus was not among the most highly-rated proposals). The agency here, however, elected to go further and consider whether the protester’s proposal was susceptible to being made one of the most highly-rated proposals through discussions and proposal revisions, and thus whether it would have a reasonable chance for award. In this regard, we note that NASA’s evaluation of Straughan’s proposal largely tracked with the competitive range standard advanced by the protester, that is, whether the proposal had a reasonable chance of being selected for award without the need for a significant rewriting of the proposal. See AR, Tab 13.03, Competitive Range Determination (May 26, 2015), at 20509 (finding that Straughan could not materially improve its Mission Suitability score without “substantially rewriting its proposal and changing out its proposed management team”). Even though NASA elected to conduct this further analysis, we find nothing objectionable with NASA’s evaluation here. See STS Strategic Techs. & Scis., Inc., B-257980, B‑257980.2, Nov. 17, 1994, 94‑2 CPD ¶ 194 at 4-5 (denying a protest challenging the exclusion of a proposal from the competitive range based on the lack of relevant experience of proposed key personnel).

Straughan’s past performance confidence rating of “moderate” was also not as high as at least two other offerors, including Offeror A. AR, Tab 13.03, Competitive Range Determination (May 26, 2015), at 20506. NASA concluded that the protester’s past performance confidence rating would not likely change as a result of discussions. Id. at 20508. We find that this determination was reasonable. First, as discussed above, Straughan does not contend that its past performance with respect to PWS §§ 2.0 or 4.0 was misevaluated or that it could--or how it would--have materially improved its rating with respect to those areas. Additionally, it appears NASA had no duty to address Straughan’s past performance even if it had conducted discussions. See FAR § 15.306(d)(3) (requiring discussions to address only “adverse past performance information to which the offeror has not yet had an opportunity to respond”).

The record also demonstrates that NASA thoroughly considered Straughan’s proposed cost. As addressed above, the agency specifically concluded that although Straughan’s proposed cost was the lowest for all offerors, the protester’s final probable cost would likely increase if the evaluated weaknesses regarding inadequate or unclear proposed staffing were resolved. AR, Tab 13.03, Competitive Range Determination (May 26, 2015), at 20507, 20508‑09. The protester does not specifically rebut NASA’s determination that resolution of the weaknesses would likely result in upward cost adjustments to Straughan’s proposal. Thus, we do not find that NASA’s determination that Straughan’s apparent cost advantage was likely illusory was unreasonable. Based on this record, we find that Straughan has failed to demonstrate that NASA unreasonably concluded that the protester’s proposal was not among the most highly-rated proposals, or improperly excluded the proposal from the competitive range.  (Straughan Environmental, Inc. B-411650, B-411650.2, B-411650.3: Sep 18, 2015)  (pdf)

The gravamen of Avar’s protest is that the agency’s use of a second competitive range decision after submission of final revised proposals--rather than the use of a best-value tradeoff--deprived Avar of the right to have the technical merits of its proposal weighed against its higher price. Thus, Avar argues that the agency failed to properly evaluate proposals in accordance with the terms of the solicitation, because it abandoned the solicitation’s evaluation scheme that non-price factors were, when combined, significantly more important than price. The protester additionally asserts that the agency converted the solicitation’s comparative award scheme to a lowest-priced technically acceptable evaluation scheme.

The agency responds that it acted reasonably when it eliminated Avar’s proposal from the competitive range due to its high price, after concluding that the proposal did not have a reasonable chance of receiving an award. The agency also argues that its best‑value analysis was proper and that it did not make award on a lowest‑priced technically acceptable basis.

Contracting agencies are not required to retain in the competitive range proposals that are not among the most highly rated or that the agency otherwise reasonably concludes have no realistic prospect of being selected for award. Federal Acquisition Regulation (FAR) § 15.306(c)(1); D&J Enters., Inc., B-310442, Dec. 13, 2007, 2008 CPD ¶ 8 at 2. For the reasons set forth in detail below, we see nothing improper about the decision to eliminate Avar from the competition using a second competitive range decision.

Here, the record shows that the agency initially concluded that Avar’s proposal should be included in the competitive range, even though its price was significantly above the government estimate. During discussions, the agency advised Avar of its high price and permitted Avar an opportunity to revise its price proposal prior to conducting its oral presentation. After the conclusion of Avar’s oral presentation, the agency submitted follow-up questions to Avar and requested its final proposal. In this communication, the agency again informed Avar that its price remained significantly higher than the agency’s estimate, and notified the protester that certain of its labor rates were higher than the agency’s estimate.

The agency’s evaluation of Avar’s final revised proposal concluded that Avar should be eliminated from the competition because its price was significantly higher than the government estimate. In this regard, the record demonstrates that, while Avar’s proposal received a very good overall technical rating, its final price of $57.3 million was approximately 20 percent higher than the government estimate. We see nothing unreasonable about the agency’s decision to eliminate Avar from the competitive range because it did not have a reasonable chance of being selected for award. Communication Mfg. Co., B-215978, Nov. 5, 1984, 84‑2 CPD ¶ 497 (a proposal which was initially in the competitive range may be removed from further consideration for award where the agency determines that the proposal does not have a reasonable chance of being selected for award after the proposal is revised.)

While Avar asserts that it was improper for the agency to eliminate its proposal from the competition because the RFP required the agency to weigh technical merit more heavily than price, our Office has previously concluded that in determining the competitive range, price is a proper factor to consider and may emerge as the dominant factor, even where the solicitation criteria place greater weight on technical factors than on price. See Motorola, Inc., B-247937, B‑247937.2, Sept. 9, 1992, 92‑2 CPD ¶ 334 at n.2; Systems Integrated, B-225055, Feb. 4, 1987, 87‑1 CPD ¶ 114 at 3-4; Jack Faucett Assocs., B-224414, Sept. 16, 1986, 86-2 CPD ¶ 310 at 2. Thus, we find that the agency’s decision to eliminate Avar’s proposal from the competitive range did not violate the solicitation’s evaluation scheme.  (Avar Consulting, Inc. B-410308: Dec 8, 2014)  (pdf)

Contracting agencies are not required to retain a proposal in a competitive range where the proposal is not among the most highly rated or where the agency otherwise reasonably concludes that the proposal has no realistic prospect of award. Federal Acquisition Regulation § 15.306(c)(1); Wahkontah Servs., Inc., B-292768, Nov. 18, 2003, 2003 CPD ¶ 214 at 4. Where a proposal is technically unacceptable as submitted and would require major revisions to become acceptable, exclusion from the competitive range is generally permissible. CMC & Maint., Inc., B-290152, June 24, 2002, 2002 CPD ¶ 107 at 2. Proposals with significant informational deficiencies may be excluded, whether the deficiencies are attributable to either omitted or merely inadequate information addressing fundamental factors. American Med. Depot, B-285060 et al., July 12, 2000, 2002 CPD ¶ 7 at 6-7. In reviewing an agency’s decision to eliminate a proposal from the competitive range, we will not evaluate the proposal anew, but rather, we will examine the agency’s evaluation to ensure it was reasonable and in accord with the provisions of the solicitation; in this regard, a protester’s mere disagreement with an agency’s evaluation does not establish that the evaluation was unreasonable. CMC & Maint., Inc., supra.

Here, the record supports the agency’s finding that Kaseman’s proposal failed to include an approach to accomplish the requirements of the PWS, as required by the solicitation. As discussed above, the solicitation expressly required offerors to submit a proposal volume consisting of the “approach” that the offeror would use “to accomplish the requirements of the [PWS].” RFP at 84. Further, the solicitation advised offerors that the agency would evaluate “the feasibility of the offeror’s approach to accomplish the requirements of the [PWS].” Id. at 93. Despite these solicitation provisions, the DTMA volume of Kaseman’s proposal included almost no discussion or detail regarding how Kaseman would accomplish the numerous, specific requirements contained in the PWS. See AR, Tab 11-1, Kaseman Proposal, vol. II, DTMA. Instead, the bulk of Kaseman’s DTMA volume provided general information about the firm and its teaming partners and discussed their practices and procedures for performing a professional services contract. See id. There was essentially no discussion of specific measures that Kaseman would take to accomplish the particular requirements of this solicitation. Id. Accordingly, we find that the agency reasonably assessed a deficiency to Kaseman’s proposal for a failure to include an approach to accomplishing the PWS requirements, as required by the solicitation.

Kaseman asserts that this deficiency could have been corrected through discussions and without a major revision to its proposal. Comments at 10-13. We find that these assertions provide no basis to object to the agency’s exclusion of Kaseman’s proposal from the competitive range. As discussed above, Kaseman’s proposal included essentially no explanation of how the firm would accomplish the solicitation’s specific requirements. Because the solicitation expressly instructed offerors to provide an approach to accomplishing the requirements and informed offerors that the feasibility of the approach would be evaluated, we think it is fair to say that providing such an approach was a core requirement for proposals. Considering that Kaseman’s proposal lacked this fundamental element, we conclude that the agency reasonably determined that the proposal would require a major re-write or revision to be considered for award. Although Kaseman argues that it could have corrected the issue through discussions and a proposal revision, an agency is not required to include in the competitive range a proposal that requires major revisions to be made acceptable. CMC & Maint., Inc., supra.  (Kaseman, LLC, B-407797, B-407797.2, Feb 22, 2013)  (pdf)

CeReTechs objects to the exclusion of its proposal from the competitive range, arguing that it prepared its price proposal in accordance with the instructions provided by the agency. Specifically, CeReTechs contends that the agency’s answers to vendors’ questions conflicted with the RFP, providing for distance-based pricing, and indicating that the bandwidth may not be available in some of the ANORN regions. Protest at 9-11.

Our Office will review an agency’s evaluation and exclusion of a proposal from the competitive range for reasonableness and consistency with the solicitation criteria and applicable statutes and regulations. Outreach Process Partners, LLC, B-405529, Nov. 21, 2011, 2011 CPD ¶ 255 at 3. In this regard, contracting agencies are not required to retain in the competitive range proposals that are not among the most highly rated or that the agency otherwise reasonably concludes have no realistic prospect of being selected for award. Federal Acquisition Regulation (FAR) § 15.306(c); Wahkontah Servs., Inc., B-292768, Nov. 18, 2003, 2003 CPD ¶ 214 at 4. Proposals with significant informational deficiencies may be excluded, whether the deficiencies are attributable to omitted or merely inadequate information addressing fundamental factors. American Med. Depot, B-285060 et al., July 12, 2000, 2002 CPD ¶ 7 at 6-7. The determination of whether a proposal is in the competitive range is principally a matter within the judgment of the procuring agency. Dismas Charities, Inc., B-284754, May 22, 2000, 2000 CPD ¶ 84 at 3. A protester’s mere disagreement with the agency’s evaluation does not show that it lacked a reasonable basis. Government Telecomms., Inc., B-299542.2, June 21, 2007, 2007 CPD ¶ 136 at 4.

Here, the record shows that CeReTechs’ proposal deviated materially from the pricing requirements set forth in the RFP and was therefore unacceptable. Specifically, CeReTechs’ provision of multiple, overlapping prices for microwave communications made it impossible for the agency to calculate a fixed-price for CereTechs or compare CeReTechs’ prices with those of other offerors. Furthermore, CeReTechs proposed conditional prices for the ANORN bandwidth, while the RFP called for award of fixed-price task orders for all of the listed regions. Where a solicitation requests offers on a fixed-price basis, an offer that is conditional, and not firm, cannot be considered for award. Omega World Travel, Inc.; Sato/Travel, Inc., B–288861.5 et al., Aug. 21, 2002, 2002 CPD ¶ 149 at 6.

Because the agency reasonably found CereTechs’ proposal unacceptable, the proposal was properly excluded from the competitive range. See NSR Solutions, Inc., B-406337, B-406337.2, Apr. 18, 2012, 2012 CPD ¶ 154 at 2 (“It is well settled that a technically unacceptable proposal cannot be considered for award, and thus properly may be excluded from the competitive range.”)  (CeReTechs Ltd., B-406873.3, Sep 25, 2012)  (pdf)

Beyel also complains that the agency should not have included NOSAT’s proposal in the competitive range, because NOSAT’s initial proposal should have been found to be technically unacceptable on the basis of its allegedly low fuel consumption rates.

This argument is without merit. Even if the agency concluded that NOSAT’s fuel consumption rates were too low such that this was a deficiency (which, as explained above, the agency did not), there is no requirement preventing an agency from including a technically unacceptable proposal in the competitive range for the purpose of conducting discussions. The determination of whether a proposal is in the competitive range is principally a matter within the sound judgment of the procuring agency. Dismas Charities, Inc., B-284754, May 22, 2000, 2000 CPD ¶ 84 at 3. While exclusion of technically unacceptable proposals is permissible, it is not required. Grove Resource Solutions, Inc., B-296228, b-296228.2, July 1, 2005, 2005 CPD ¶ 133 at 3-4. A fundamental purpose in conducting discussions is to determine whether deficient proposals are reasonably susceptible of being made acceptable. Id. at 4.  (Beyel Brothers, Inc., B-406640,B-406640.2, Jul 18, 2012)  (pdf)

The protester argues that both the evaluation of its own proposal and the agency’s competitive range determination were unreasonable. In the latter connection, Arc-Tech contends that the agency failed to consider price in determining the competitive range and instead based its determination as to which proposals were included on an arbitrary technical cut-off score.

The determination of whether a proposal is in the competitive range is principally a matter within the reasonable exercise of discretion of the procuring agency. Smart Innovative Solutions, B-400323.3, Nov. 19, 2008, 2008 CPD para. 220 at 3. In reviewing an agency’s evaluation of proposals and subsequent competitive range determination, we will not evaluate the proposals anew in order to make our own determination as to their acceptability or relative merits; rather, we will examine the record to determine whether the evaluation was reasonable and consistent with the evaluation criteria. Foster-Miller, Inc., B-296194.4, B-296194.5, Aug. 31, 2005, 2005 CPD para. 171 at 6.

Here, based upon our examination of the record, we conclude that the agency’s competitive range determination was unreasonable in that there is no evidence that price was considered in deciding whether a proposal should be included or excluded. In this connection, we recognize that an agency may properly exclude a technically unacceptable proposal from the competitive range regardless of its price. TMC Dev. Corp., B-296194.3, Aug. 10, 2005, 2005 CPD para. 158 at 4. We also recognize that an agency has the discretion to exclude a technically acceptable proposal that is not among the most highly rated proposals where it determines that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted (provided that the solicitation notifies offerors, as the RFP here did, that the competitive range might be limited for purposes of efficiency). See FAR sect. 15.306(c)(2); Computer & Hi-Tech Mgmt., Inc., B‑293235.4, Mar. 2, 2004, 2004 CPD para. 45 at 6. An agency may not exclude a technically acceptable proposal from the competitive range, however, without taking into account the relative cost of that proposal to the government. Kathpal Techs., Inc.; Computer & Hi-Tech Mgmt., Inc., B-283137.3 et al., Dec. 30, 1999, 2000 CPD para. 6 at 9; Meridian Mgmt. Corp., B‑285127, July 19, 2000, 2000 CPD para. 121 at 4. That is, an agency may not exclude a technically acceptable proposal from the competitive range simply because the proposal received a lower technical rating than another proposal or proposals, without taking into consideration the proposal’s price. A&D Fire Protection Inc., B‑288852, Dec. 12, 2001 CPD para. 201 at 3. Similarly, an agency may not limit a competitive range for the purposes of efficiency on the basis of technical scores alone. See Kathpal Techs., Inc.; Computer & Hi-Tech Mgmt., Inc., supra, at 9-10.

In this case, the record shows that Arc-Tech’s proposal was excluded from the competitive range not because it had been determined technically unacceptable, but because it was not among the most highly rated proposals technically. While the competitive range determination and the technical evaluation panel (TEP) report both label the protester’s proposal “unacceptable,” neither of those documents provides any explanation for such a finding, and there is no support for it anywhere else in the record. On the contrary, the score sheets of the individual evaluators reflect ratings of [deleted]. In fact, it is apparent from the TEP report--in particular, the statement that “the results [of the individual technical evaluations] were averaged to provide a total score to determine whether the company was in the competitive range or not,” TEP Report, Oct. 6, 2008, at 1--that the evaluators used the offerors’ technical scores to determine whether their proposals should be included in the competitive range, and that proposals excluded from the competitive range based on their technical scores were, simply as a consequence of their exclusion, labeled unacceptable. Further, there is no indication in the record that the agency considered the protester’s proposed price as part of the competitive range determination. In sum, because the record shows that the agency’s decision to exclude the protester’s proposal from the competitive range was based on its technical score alone--without consideration of its relative cost to the government and without a documented finding that the proposal was unacceptable--the decision was improper, and on that basis we sustain Arc-Tech’s protest.

We recommend that the agency make a new competitive range determination, taking into consideration offerors’ proposed prices, as well as their technical scores.[6] We also recommend that the agency reimburse the protester for its cost of filing and pursuing the protest, including reasonable attorneys’ fees. 4 C.F.R. sect. 21.8(d)(1) (2008). The protester’s certified claim for costs, detailing the time spent and cost incurred, must be submitted to the agency within 60 days after receiving this decision.

The protest is sustained.  (Arc-Tech, Inc., B-400325.3, February 19, 2009) (pdf)

Cambridge alleges that the agency impermissibly reopened the competitive range to conduct discussions with Chugach and Sim-G, whose initial proposals were previously determined technically marginal overall. Protest at 3. It asserts that since the proposals of the remaining small business offerors received evaluation ratings that were not acceptable, i.e., satisfactory, the set-aside should be withdrawn and the procurement recompeted on an unrestricted basis. Protester's Comments at 4-6.

The decision to establish a competitive range and the determination whether a proposal should be included therein is principally a matter within the sound judgment of the procuring agency. Dismas Charities, Inc., B-284754, May 22, 2000, 2000 CPD para. 84 at 3. The significance of the weaknesses and/or deficiencies in an offeror's proposal, within the context of a given competition, is a matter for which the procuring agency is, itself, the most qualified entity to render judgment. Our Office will review that judgment only to ensure it was reasonable and in accord with the solicitation provisions; a protester's mere disagreement with an agency's judgment does not establish that the judgment was unreasonable. Albert Moving & Storage, B-290733, B-290733.2, Sept. 23, 2003, 2003 CPD para. 8 at 6; CMC & Maint., Inc., B-290152, June 24, 2002, 2002 CPD para. 107 at 2.

We find Cambridge's argument that the agency improperly established a revised competitive range comprised of allegedly technically unacceptable proposals without merit. Under the regulatory scheme applicable here, the contracting officer was required to establish a competitive range comprised of all of the most highly rated proposals based on the "ratings of each proposal against all evaluation criteria." Federal Acquisition Regulation (FAR) sect. 15.306(c)(1). As mentioned previously, of the remaining small business offerors, the initial proposals submitted by Chugach and Sim-G were determined to be the most highly rated based on the overall technical rating of marginal. That is, the agency evaluators concluded that any errors or deficiencies in the proposals could be corrected through discussions without a major rewrite or major revision of proposals.

Moreover, contrary to the protester's view, the solicitation did not require the inclusion of only technically acceptable proposals in the competitive range. Rather, as noted above, section M of the solicitation simply mandated that to be considered for award, proposals had to receive at least an acceptable rating under the non-price evaluation factors. In any event, as the agency and Chugach both argue, based on the initial evaluation of proposals the two offerors included in the revised competitive range were determined capable of performing the required effort, and Cambridge has not shown otherwise. Since the record indicates that neither Chugach's or Sim-G's initial proposal were rated unsatisfactory under any non-price factor, we find the contracting officer reasonably concluded that the agency could receive offers from these two small businesses at fair market prices if discussions were conducted with both concerns. In short, we are not persuaded by, and nothing in the record supports, the protester's contention that the agency was required to withdraw the set-aside and reissue the solicitation on an unrestricted basis.

Finally, the protester maintains that the agency impermissibly reopened the competitive range despite a FAR provision prohibiting it to do so. The provision in question provides as follows:

If an offeror's proposal is eliminated or otherwise removed from the competitive range, no further revisions to that offeror's proposal shall be accepted or considered.

FAR sect. 15.307(a). Under this provision, the contracting agency is prohibited from accepting further proposal revisions from an offeror where the offeror's proposal is excluded from the competitive range. In our view, this provision does not address the situation where, as here, the agency decides to establish a new and/or revised competitive range; it would be unreasonable to interpret this provision to effectively deprive the agency of the discretion to establish a new and/or revised competitive range, to conduct discussions with competitive range offerors, or to evaluate revised proposals. In fact, FAR part 15 recognizes the authority to make successive competitive range determinations albeit generally with the intent of narrowing the competitive range. However, GAO consistently has upheld the agency's authority to establish successive competitive ranges. Dynacs Eng'g Co., Inc., B-284234 et al., Mar. 17, 2000, 2000 CPD para. 50 at 4; see also FAR sect. 15.306(c)(3).

Here, we have already concluded that the contracting officer reasonably determined that of the remaining offerors, Chugach's and Sim-G's proposals were the most highly rated, and our review of the record shows that this determination was consistent with the terms of the solicitation and the applicable procurement regulations. As a result, the contracting officer's decision to establish a revised competitive range and conduct discussions with these two offerors was reasonable.  (Cambridge Systems, Inc., B-400680; B-400680.3, January 8, 2009)  (pdf)

Where, as here, a protest challenges an agency’s evaluation and exclusion of a proposal from the competitive range, we first review the propriety of the agency’s evaluation of the proposal, and then turn to the agency’s competitive range determination. Government Telecomms., Inc., B-299542.2, June 21, 2007, 2007 CPD para. 136 at 4; Americom Gov’t Servs., Inc., B-292242, Aug. 1, 2003, 2003 CPD para. 163 at 4. In reviewing such protests, we do not conduct a new evaluation or substitute our judgment for that of the agency, but examine the record to determine whether the agency’s judgment was reasonable and in accordance with the terms of the solicitation and applicable procurement statutes and regulations. Wahkontah Servs., Inc., B-292768, Nov. 18, 2003, 2003 CPD para. 214 at 4. An offeror’s mere disagreement with the agency’s evaluation is not sufficient to render the evaluation unreasonable. Ben-Mar Enters., Inc., B-295781, Apr. 7, 2005, 2005 CPD para. 68 at 7. As explained in detail below, based upon our review of the record, HUD’s evaluation of Lakeside’s proposal and the subsequent exclusion of Lakeside’s proposal from the competitive range were reasonable and consistent with the solicitation. The record reflects that Lakeside’s technical proposal was downgraded in large part because the information provided lacked sufficient detail for the agency to determine that Lakeside would be able to successfully comply with the RFP’s requirements. Although we do not here specifically address all of the protester’s arguments about the evaluation of its proposal, we have fully considered all of them and find that they afford no basis to question the agency’s evaluation. With regard to HUD’s evaluation of its proposal under the technical and management approach factor, the protester contends that, contrary to the TEP’s findings, the proposal clearly described how the firm would be able to handle the increase in work (i.e., closing services for Michigan) without increasing its staff. Lakeside contends, for example, that its proposal stated that all of the individuals listed would perform the Michigan work and that they were committed to the contract. The protester also asserts that, given the technology and networking software described in Lakeside’s proposal, it is quite simple to perform any needed closing service tasks from Ohio or the local Michigan offices. Further, Lakeside argues, because it is a fully-licensed “National Producer” able to do work in all 50 states, the company possessed the ability to “move into any [new] State and be up and running as a fully functioning title company within no time at all.” Comments at 5-6. Notwithstanding the offeror’s view that its proposal had adequately addressed the technical and management approach factor, Lakeside does not dispute the TEP’s finding that its headquarters personnel would not in fact be working 100 percent of their time on the Michigan contract, or that its proposal failed to disclose the intended office locations of its key personnel. Lakeside also does not dispute the TEP’s findings that its proposal provided no methodology for determining the number of closers needed, that the proposal did not explain how interactions, communications, and logistics would be handled between its various offices, or that Lakeside’s proposed staff lacked closing experience. Rather, Lakeside essentially argues that the TEP’s judgment that there existed considerable doubt about the firm’s ability to meet the PWS requirements was unreasonable. We find the protester’s challenge to the agency’s evaluation here amounts to mere disagreement with the agency’s judgment and, thus, does not establish that the evaluation was unreasonable. JAVIS Automation & Eng’g, Inc., B-293235.6, Apr. 29, 2004, 2004 CPD para. 95 at 5. Lakeside also argues that the TEP’s evaluation of its proposal under the prior experience factor was improper. Specifically, the protester asserts that the agency evaluators believed that Lakeside had no experience in Michigan, although its proposal made explicit that the firm was currently closing properties and issuing policies in Michigan. Comments at 4-5. Lakeside’s assertion here, however, is based on the statements of an individual evaluator, and the record shows that these statements were not carried forward into the agency’s consensus evaluation report. See AR, Tab 9, TEP Report, at 68. Since it was the TEP final report upon which the contracting officer relied in making his competitive range determination, Lakeside’s objections to the statements of an individual evaluator provide us with no basis to question the competitive range determination. See Instrument Control Serv., Inc., B-285776, Sept. 6, 2000, 2000 CPD para. 186 at 3 n.6.  Given our determination that the agency’s evaluation of Lakeside’s proposal was reasonable and consistent with the solicitation, and in view of the agency’s conclusion that the proposal was unacceptable as a result of the weaknesses and deficiencies identified in the evaluation, we find that it likewise was reasonable for the agency to conclude that Lakeside’s proposal had no reasonable chance for award and to exclude Lakeside’s proposal from the competitive range. See TMC Design Corp., B-296194.3, Aug. 10, 2005, 2005 CPD para. 158 at 5; Network Sys. Solutions, Inc., B-249733, Dec. 14, 1992, 92-2 CPD para. 410 at 4.  (Lakeside Escrow & Title Agency, Inc., B-310331.3, January 7, 2008) (pdf)

The Federal Acquisition Regulation (FAR) provides that an agency "shall establish a competitive range comprised of all of the most highly rated proposals." FAR sect. 15.306(c)(1). Although agencies are not required to retain proposals in the competitive range that the agency reasonably concludes have no realistic chance for award, SDS Petroleum Prods., Inc., B-280430, Sept. 1, 1998, 98-2 CPD para. 59 at 5, where, as here, a determination to exclude a proposal is based entirely on the proposal’s higher evaluated cost, the agency’s cost realism analysis must be reasonably thorough, accurate and complete. See SGT, Inc. B-294722.4, July 28, 2005, 2005 CPD para. 151. Where an agency’s cost realism analysis reflects material errors or flawed assumptions it cannot be considered reasonable. Future-Tec Mgmt. Sys, Inc., B-283793, Mar. 20, 2000, 2000 CPD para. 59. Here, as discussed in more detail below, the record establishes that the agency’s cost realism analysis and its cost/price evaluation contained various errors and, as a result, the agency’s competitive range determination lacked a reasonable basis. Further, the record does not reasonably support the contracting officer’s determination that Global could not significantly lower its evaluated cost/price in response to discussions. (Global, A 1st Flagship Company, B-297235; B-297235.2, December 27, 2005) (pdf)

The determination of whether a proposal is in the competitive range is principally a matter within the sound judgment of the procuring agency. Dismas Charities, Inc., B-284754, May 22, 2000, 2000 CPD paragraph 84 at 3. While exclusion of technically unacceptable proposals is permissible, it is not required. Albert Moving & Storage, B-290733, B-290733.2, Sept. 23, 2002, 2003 CPD paragraph 8 at 6. The significance of the weaknesses and/or deficiencies in an offeror's proposal, within the context of a given competition, is a matter for which the procuring agency is, itself, the most qualified entity to render judgment. Our Office will review that judgment only to ensure it was reasonable and in accord with the solicitation provisions, and a protester's mere disagreement with an agency's judgment does not establish that the judgment was unreasonable. Id. Contrary to the protester's view, there is nothing under the circumstances here that required the exclusion of Evolvent's proposal from the competitive range. As mentioned above, there is no requirement that an agency exclude a proposal that is technically unacceptable as submitted. Here, the record includes a relatively detailed analysis of the agency's decision to include Evolvent's proposal in the competitive range (as well as the agency's decision to exclude the proposals of other offerors). See AR, Tab 13, Contract Review Board Presentation, at 16-17; Tab 14, Contracting Officer's Determination of the Competitive Range. The agency recognized that Evolvent would need to acknowledge its receipt of the amendments in order for its proposal to comply with the terms of the RFP. Moreover, the agency also recognized that Evolvent's proposed labor rates were significantly lower than those proposed by Grove (the other competitive range offeror) and concluded that Evolvent should be requested to provide price information that would allow the agency to assess the realism of the firm's proposed labor rates. See AR, Tab 13, Contract Review Board Presentation, at 15, 17. A fundamental purpose in conducting discussions is to determine whether deficient proposals are reasonably susceptible of being made acceptable. See Aviate L.L.C. , B-275058.6, B-275058.7, Apr. 14, 1997, 97-1 CPD paragraph 162 at 8. There is simply no evidence in the record here to show that the agency unreasonably concluded that Evolvent's proposal would have reasonable chance of being selected for award if the firm received discussions concerning its proposal. We conclude that the Navy reasonably included Evolvent's proposal in the competitive range. (Grove Resource Solutions, Inc., B-296228; B-296228.2, July 1, 2005) (pdf)

As noted above, the solicitation permitted the agency to limit the number of proposals in the competitive range to the greatest number that would permit an efficient competition. Although JAVIS submitted an acceptable proposal, its evaluation ratings were lower than those of the proposals included in the competitive range; the agency reasonably determined that a competitive range consisting of those higher-rated proposals was the largest number that could be permitted and still allow an efficient competition. In sum, we conclude that the agency reasonably excluded JAVIS’s proposal from the competitive range.  (JAVIS Automation & Engineering, Inc., B-293235.6, April 29, 2004) (pdf)

Finally, CHM’s complains that the agency impermissibly failed to ensure that the competitive range was comprised of the greatest number of offerors that would permit an efficient competition. In its view, an efficient competition could be conducted even if proposals such as CHM’s, which received an overall rating of green, were included in the competitive range. The RFP specifically permitted the agency to limit the number of proposals in the competitive range to the greatest number that would permit an efficient competition. FAR § 15.306(c)(2). Here, the agency did so, selecting [DELETED] proposals for inclusion in the competitive range. The record shows that, while CHM submitted an acceptable proposal, its proposal was not among the [DELETED] most highly rated ones. We see no basis to question the agency’s determination that a competitive range of [DELETED] proposals was the largest number that could be permitted and still allow an efficient competition. (Indeed, we believe the agency had the discretion to establish a smaller competitive range.) On this record, the agency reasonably excluded CHM’s proposal from the competitive range.  (Computer & Hi-Tech Management, Inc., B-293235.4, March 2, 2004) (pdf)

Plaintiff argues that the decision not to include it in the competitive range was arbitrary and capricious. The thrust of plaintiff’s argument is directed at what it views as inconsistent treatment of it as compared to Dell and HP. Plaintiff contends that, on re-evaluation, the Army failed to reasonably consider the significant advantage of FCN’s price, while giving [ ] to the technical ratings of Dell and HP. Moreover, plaintiff takes the position that the Army improperly failed to recognize additional [ ] of its proposal under the management and technology subfactors. According to plaintiff, these [ ] would have yielded [ ] for these subfactors, thus allowing FCN to be included in the competitive range.

Plaintiff also takes issue with the fact that Dell and HP were given [ ] in their ratings on re-evaluation, while the Army failed to correct FCN’s allegedly flawed technology and past performance ratings. According to plaintiff, this flawed past performance rating was prejudicial. For its rating, the Army identified as one of FCN’s [ ] the fact that FCN did not [ ]. Plaintiff, however, argues that it did submit this information, and it therefore should not have been assigned a [ ]. Accordingly, plaintiff asks the court to grant a permanent injunction, arguing that the balance of hardships tips in its favor, and that absent an injunction, it would be irreparably harmed.

Defendant responds that its evaluation of FCN’s proposal was in accordance with FAR 15.306(c). Defendant asserts that the Army properly considered price, but ultimately was within its discretion in concluding that despite FCN’s low price, it did not have a realistic chance of receiving an award because it was rated only [ ] on the mission support factor. This is consistent with the RFP, which states that price is the least important evaluation factor. Moreover, defendant disputes the strengths that FCN contends it should have been credited with under the management and technology subfactors. Defendant also disagrees that plaintiff has made the showing required to entitle it to a permanent injunction, and contends that plaintiff failed to demonstrate prejudice from the alleged errors in its past performance evaluation.

Given the broad discretion afforded to a contracting officer’s determination of the competitive range, we conclude that plaintiff has not established that the Army’s evaluation of FCN’s proposal was unreasonable or unlawful. See Birch & Davis Int’l, Inc. v. Christopher, 4 F.3d 970, 973 (Fed. Cir. 1993). Nor do we see any evidence of inconsistent treatment of FCN, Dell, and HP.

With regard to FCN’s price, during both the original Phase II evaluation and the re-evaluation, the Army did consider all the evaluation factors. It determined that even the [ ] would not warrant an award to an offeror whose mission support rating was only [ ]. In fact, in both her original evaluation and in her re-evaluation, the SSA stated that FCN’s low price was not sufficient to give it a realistic chance of award due to its mission support rating. AR 833, 2029. On re-evaluation, she further noted that price was the least important factor in this procurement, and [ ]. AR 2029. Additionally, during both evaluations, she explicitly stated that [ ]. AR 833; 2028. These decisions refute plaintiff’s contention that the Army failed to consider the price factor and are entirely consistent with the RFP and with the FAR. See 48 C.F.R. § 15.306(c). Where the Army has considered all the evaluation factors and provided a reasonable explanation for its competitive range determination, this court will not interfere. Birch & Davis Int’l, 4 F.3d at 973.

In any event, during re-evaluation, HP and Dell were both given ratings of [ ] for the mission support factor. FCN, on the other hand, was rated [ ]. Plaintiff has no grounds to argue inconsistent treatment where there is a meaningful difference between its technical ratings and those of Dell and HP. In her original Phase II evaluation, the SSA noted that she would not add any offerors whose mission support ratings were less than [ ] into the competitive range. This decision remained consistent during re-evaluation, and thus Dell and HP were allowed into the competitive range after receiving [ ] mission support ratings. 

Thus, plaintiff’s real problem is that it received a mission support rating of [ ]. Plaintiff acknowledges that the agency was within its discretion, when confronted by a number of proposals with mission support ratings of [ ] or higher, to limit further competition to those only with ratings of [ ] or higher. Its argument that it should have been credited with additional strengths under the management and technology subfactors merely constitutes disagreement with the Army’s evaluation of its proposal, which is insufficient to establish that the evaluation was unreasonable or unlawful. The Army provided its reasoning for why it did not credit FCN with these strengths and ultimately found that FCN [ ]. AR 1980-81. Consequently, FCN was found to have met, but not exceed, the requirements for these subfactors. In contrast, the Army found on re-evaluation that both Dell and HP exceeded the requirements for the management subfactor, the most important subfactor within mission support. We therefore have no basis for second-guessing the Army’s evaluations.  (FCN, Inc. v. U. S., No. 15-833C, November 6, 2015)  (pdf)

1. The Competitive Range Decision

Plaintiff contends that its unacceptable Technical/Management rating cannot be reconciled with its adequate Past Performance rating. The narrative description accompanying its Technical/Management rating provides, in part, that the “proposal is highly inadequate; the offeror cannot meet performance requirements.” AR 524. Plaintiff’s Past Performance rating, on the other hand, includes the following narrative: “minimum doubt exists, based on the Offeror’s performance record, that the Offeror can successfully perform the proposed effort.” AR 525. A similar argument was made and rejected in ManTech. We concluded there that such assessments are not inconsistent because the Past Performance evaluators had a fundamentally different task than did the Technical/Management evaluators.

Past performance “is a measure of the degree to which an Offeror has kept its previous contractual promises and thus satisfied its customers, to include management of teaming arrangements for large businesses.” AR 518. The evaluators were to make the following assessments after contacting the clients serviced by the bidders’ previous contracts: whether previous contracting efforts indicate the scheduling standards were achieved without affecting cost or performance; whether the quality of services provided were professional and at the level expected by the customer; whether the offeror’s team can effectively manage large contracts similar in scope, complexity and size; and whether the offeror demonstrated satisfactory previous teaming arrangements and positive business relationships. AR 518.

The Technical/Management evaluators, on the other hand, were required to ensure that the offeror had the “depth and breadth [of] experience and expertise” to “meet the requirements for each of the functional areas.” AR 514, 517. The evaluators were probing for detail on particular experience relevant to the Statement of Objectives. For instance, one of nine standards required the offeror to demonstrate “an understanding of the applicable information systems’ technical standards required to enable information sharing, integration, and interoperability by using best practices and align the evolving architecture with overarching federal, IC and DOD architecture guidance.” AR 518. Another required offerors to provide “an understanding of the US and allied forces’ logistics support system and proposes an integrated solution that allows efficient and rapid distribution of assets between DOD and its strategic partners, especially during times of national crisis.” AR 517.

Hyperion satisfied customers on related types of work in the past; it was unable to demonstrate to the Technical/Management evaluators that its experience was in the precise areas covered by the Statement of Objectives. These findings are not at odds.  (Hyperion Inc., v. U. S., No. 09-758c, April 29, 2010) (pdf)

This court has interpreted the language of FAR 15.306(c)(1) to require close scrutiny when an agency establishes a competitive range of only one offeror, thus allowing that offeror to modify its proposal through discussions, while denying this opportunity to other offerors. E.g., Int’l Outsourcing Servs., LLC v. United States, 69 Fed. Cl. 40, 51 n.12 (2005); Bean Stuyvesant, L.L.C. v. United States, 48 Fed. Cl. 303, 339 (2000) (citation omitted). Where, as here, the government has established a competitive range of one, the court must closely examine the reasons for eliminating all other competitors from the procurement. See Chapman Law Firm Co. v. United States, 71 Fed. Cl. 124, 132 (2006) (“Case law and common sense counsel that close scrutiny is appropriate where an agency has included only one firm in the competitive range . . . .”), aff’d in relevant part sub nom. Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 938 (Fed. Cir. 2007).  (p. 14)

(sections deleted)

IV. Whether the Army’s Competitive Range Determination and Proposed Discussions with Aimpoint are Arbitrary and Capricious or Contrary to Law.

The court turns first to plaintiff’s contention that Aimpoint and EOTech received, or will receive, disparate treatment. This allegedly disparate treatment is the result of the Army’s decision to create a competitive range of one offeror, which necessarily permits Aimpoint to revise Aimpoint A through discussions, and the Army’s decision to permit the reconfigured Aimpoint A to proceed to award without being subjected to Endurance-Live Fire Essential Criteria testing. As discussed below, the court views this series of decisions by the Army to constitute a relaxation of the solicitation requirement that eliminated EOTech from further consideration. Furthermore, there were enough departures from the evaluation plan described in the solicitation to cast a shadow upon this procurement, when these irregularities are properly placed in context. Finally, the Army’s decision to secure EOTech’s gooseneck mount to the M16A2 by finger-tightening cannot be judged to be fundamentally fair or rational, [ ]. The cumulative effect of these procurement errors invalidates the Army’s competitive range determination and its proposed plan to select the modified Aimpoint A without a retest of the Endurance-Live Fire criteria. If these procurement procedures were allowed to stand, the Army’s upcoming “best value” decision would be fundamentally flawed, arbitrary and capricious, and would not reflect full and open competition.  (p. 15)  (L-3 Communications Eotech, Inc., v. U. S. and Aimpoint, Inc., No. 08-515C, September 23, 2008) (pdf)

a.     Did Not Violate FAR 15.306, In Not Conducting Additional Offeror Discussions.

ISC interprets FAR 15.306(c)(1) to mean that discussions are required if a competitive range is set. See Sec. Am. Compl. ¶ 34 at 9. The text of FAR 15.306(c)(1), however, provides that setting a competitive range is required only if discussions are to be conducted, but not the reverse. See 48 C.F.R. § 15.306(c)(1) (“[a]gencies shall evaluate all proposals in accordance with 15.305(a), and, if discussions are to be conducted, establish the competitive range.”). In this case, the Solicitation provides that GSA may make an award without any discussions. See AR 144 (RFP § L.10); see also 48 C.F.R. § 15.306(a)(3) (“Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions.”) (emphasis added). Although the CO’s April 18, 2007 Competitive Range Determination may be read to imply that additional discussions would be held after the competitive range was reconsidered,14 the court does not construe this statement as imposing any legal obligation on the CO to do so. The court has determined that the CO properly elected not to hold additional discussions, because neither the FAR, the Solicitation, nor the court required additional discussions. See AR 2561; see also Impresa, 238 F.3d at 1338-39 (when reviewing agency action the court must independently determine whether a decision has a rational basis based on the facts in the record); DynCorp Intern LLC v. United States, 76 Fed. Cl. 528, 539 (2007) (“It is well-established that when offerors are on notice that award may be made without discussions, the [G]overnment is not required, as a general rule, to hold discussions before award.”).

b.     Did Not Violate FAR 15.306, In Not Relying On The Price Evaluation Team’s Analysis.

In Information Sciences II, the court instructed the CO to reconsider the August 16, 2004 Competitive Range Determination, in compliance with the Solicitation and all applicable FAR requirements. See Info. Scis. II, 75 Fed. Cl. at 414 (“GSA must reconsider the competitive range determination. Once GSA establishes a competitive range that complies with the terms of the Solicitation and the FAR, a newly appointed SSA may utilize existing technical and price evaluations to determine which proposal represents the ‘best value’ to the agency.”). In this case, the Solicitation states that price was one of four evaluation criteria. See AR 258 (“Price proposal(s) . . . will be evaluated[.]”); see also AR 264 (“To ensure fair, reasonable, balanced, and realistic prices, the Government will perform a price analysis.”). Although the Solicitation requires the CO to consider price, when making the Competitive Range Determination, the Solicitation did not require the CO to rely on the price analyses of the Price Evaluation Team. See AR 154 (RFP § M.6.B) (as modified by Amendment 0006). The Solicitation only stated that the Price Evaluation Team’s analysis would not employ ratings. Id. (“The price proposal will not be rated and will be separate from the technical evaluation.”) (emphasis in original); see also AR 155 (RFP § M.8) (“Once the technical proposals have been evaluated and a consensus adjectival and confident [sic] rating are assigned, the rated technical proposals shall then be compared to the price analysis and incentive plan and analysis for the proposal, to complete a best value determination for the Government.”). FAR 15.306(c)(1) only requires the CO to consider price, if it is a Solicitation term. See 48 C.F.R. § 15.306(c)(1) (“Based on the ratings of each proposal against all evaluation criteria, the contracting officer shall establish a competitive range comprised of all of the most highly rated proposals[.]”) (emphasis added). FAR 15.308, however, permits the SSA to consider the final price evaluation in rendering a “best value” determination. See 48 C.F.R. § 15.308 (in making a “best value” determination “the SSA may use reports and analyses prepared by others”). Since neither the FAR nor the Solicitation prohibited the CO from determining the price of Symplicity’s initial proposal and then using that price to establish the Reconsideration of Competitive Range, nor required the CO to reconvene the Price Evaluation Team to correct an error that the CO identified and reconciled, the CO’s price determination will not be set aside. See Honeywell, 870 F.2d at 648 (citation omitted) (holding when the trial court finds a “reasonable basis” for an agency’s action, the court should “stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.”); see also John C. Grimberg, 702 F.2d at 1372 (holding that the court may interfere with a federal procurement “only in extremely limited circumstances”).

c.     Did Not Violate FAR 15.306, In Correcting Defendant-Intervenor’s Price Proposal.

The court rejects DEVIS’s contention that the April 18, 2007 Reconsideration of the Competitive Range is “is flatly contradicted by the Administrative Record,” “invalid,” and that Symplicity’s proposal “clearly inhibited easy access to whatever price information it did include,” in violation of Sections L.7 and L.8.1 of the Solicitation and FAR 15.306. See Pl. Int. PH Br. at 16- 17; see also Int. Mem. II at 14. The court is satisfied that Symplicity’s total offered price could be discerned by comparing the price proposal to the Solicitation’s requested CLIN pricing format. See AR 2545 (April 18, 2007 Competitive Range Determination) (“Symplicity’s price proposal clearly contained accurate pricing, with sufficient back-up data for eight years, including pricing for CLIN 0002 - FedTeds and CLIN 0003 - Electronic Proposal Receipt.”). Accordingly, it was rational for the CO to determine that Symplicity’s total price was $12,044,563. See AR 2545; see also AR Tab 158 (Symplicity’s price proposal identifying and explaining each CLIN including “CLIN 0004” and “CLIN 0001B1”); Int. Ex. A (DEVIS exhibit showing that Symplicity’s total price was around $12 million).  The court also rejects DEVIS’s argument that the CO engaged in “fraud,” because Symplicity’s price was not the result of a “clerical error,” but the CO calculating Symplicity’s “Year 1” CLINs so they would comply with the Solicitation. See Int. Ex. A (Symplicity Price Calculation Table); see also 11/29/07 TR at 135 (DEVIS’S COUNSEL: “[T]he omissions of contract line item 0004 and 0001B1 were in fact identified by the contracting officer[.]”). Without evidence of actual misconduct, the court must assume that the CO misread Symplicity’s proposal and the CO’s corrective actions were made in good faith. See T&M Distribs., Inc. v. United States, 185 F.3d 1279, 1285 (Fed. Cir. 1999) (“[G]overnment officials are presumed to act in good faith, and it requires ‘well-nigh irrefragable proof’ to induce the court to abandon the presumption of good faith[.]”) (quoting Kalvar Corp. v. United States, 543 F.2d 1298, 1301-02 (Ct. Cl. 1976)). Symplicity’s price proposal also did not violate the terms of the Solicitation stating that all “CLINs in Section B shall be addressed,” and “be priced as a Firm-Fixed Price[.]” AR 247 (RFP § L.8.2), 263 (RFP § M.6). Section L.8.3.4 of the Solicitation requires that an offeror’s price proposal contain “sufficient price detail for equipment, labor, hosting, etc., to support the proposed Firm-Fixed Price and to permit the Government to determine that the proposed Firm-Fixed Price is fair and reasonable.” AR 254. The Solicitation also requires offerors to propose prices for the threeyear Base Period and five one-year option periods using CLINs 0001A through 0001F, and propose two options for the ‘FedTeds’ (CLIN 0002) and ‘EPR’ modules (CLIN 0003). See AR 196 (RFP § B.2). In response, Symplicity provided a price summary for Year 1, but broke out the “lump sum CLIN” into “five sub-CLINs 0001A through E,” pricing the FedTeds and EPR options by using the requested format of CLINs 0002 and 0003, proposing support maintenance labor under a separate CLIN 0004, and “hosting services back-up” under CLIN 0001B1. See AR Tab 158 at 2, 8. CLIN 0004 for Ongoing Support Maintenance, including Help Desk (7 am – 7 pm) for years 1 through 8, and CLIN 0001B1 for Hosting Services Back-up for years 2 through 8, were expressly contemplated in the Solicitation, and properly were included by the CO in finding Symplicity’s total price was $12,044,563. See AR 92. In effect, Symplicity simply broke down “certain [requested] services and price[d] them under additional, separate CLINs,” without changing the overall price. See Def. Int. PH Br. at 14. The court recognizes that Sub-CLIN 0001F, requested in Section B of the Solicitation, was not included in Symplicity’s price proposal. See AR 247 (“All CLINs in Section B shall be addressed, including optional CLIN’s 0002 and 0003.”); see also AR 196 (“CLIN 0001F Option Period 5 (1 year)”); AR Tab 158 (Symplicity price proposal missing sub-CLIN 0001F, without explanation). It is unclear, however, if inclusion of each “sub-CLIN” was required by the Solicitation, even if each CLIN was required. See AR 247 (“All CLINs in Section B shall be addressed, including optional CLIN’s 0002 and 0003.”). In any event, ISC’s and DEVIS’s initial price proposals also had a “number of minor price and technical issues.” See AR 2545-47 (April 18, 2007 Competitive Range Determination) (“The clarification issues associated with [ISC’s, DEVIS’s, and Symplicity’s] price proposal[s] were minor[.]”). For this reason, Section L.8.3.3 of the Solicitation provides that “[s]uch exceptions, deviations, or conditional assumptions will not, of themselves, automatically cause a proposal to be termed unacceptable.” AR 253 (RFP § L.8.3.3) (emphasis added). Accordingly, the court has determined that the CO did not violate FAR 15.306, nor act contrary to the Solicitation, by including Symplicity’s price proposal in the April 18, 2007 Reconsideration of the Competitive Range Determination, although there were “some” deviations from the requested pricing structure. See Data Gen., 78 F.3d at 1564 (holding that a CO should not be required to “disqualify[] an otherwise qualified bidder because of inconsistencies in its quoted prices,” where there is no substantial deviation from the RFP.).  

d.     Did Not Violate FAR 15.306, In Not Conducting A “Price Realism Analysis.”

In this case, the Solicitation advised potential offerors that the “[p]rice evaluation will focus heavily on the realism of the proposed prices for the scope and nature of the solution/services proposed.” AR 257 (emphasis added); see also Int’l Outsourcing Servs., LLC v. United States, 69 Fed. Cl. 40, 47 n.7 (2005) (“However, an agency at its discretion may . . . provide for a price realism analysis in the solicitation of fixed-price proposals.”) (internal citations omitted) (emphasis added); 48 C.F.R. §§ 15.404-1(a)(1), (d)(3) (“The contracting officer is responsible for evaluating the reasonableness of the offered prices . . . [P]roposals shall be evaluated using the criteria in the solicitation[.]”) (emphasis added). The Solicitation also provided that: “A price analysis of each  CLIN, including optional CLIN 0002 and optional CLIN 0003, will be performed on the proposed Firm-Fixed Price, including an analysis of the price detail for equipment, labor, hosting, etc., which supports the proposed Firm-Fixed Price. The price analysis will be performed in accordance with FAR 15.404-1(b)(2)(ii) through (vii) to allow the Government to determine that the proposed Firm- Fixed Price is fair and reasonable.” AR 264 (emphasis added). The Solicitation provided for a “price analysis” and a “price realism analysis,” but nothing more. Id. (“The price analysis will be performed in accordance with FAR 15.404-1(b)(2)(ii) through (vii)”); see also AR 257 (“Price evaluation will focus heavily on the realism of the proposed prices for the scope and nature of the solution/services proposed.”) (emphasis added). The court previously determined that GSA conducted an adequate price analysis and price realism analysis of Symplicity’s proposal. See Info. Scis. I, 73 Fed. Cl. at 102-03 (“By providing a cogent explanation as to why Symplicity’s price was lower than the other offerors, the court is satisfied that GSA Price Team performed a ‘price realism analysis’ in accordance with the Solicitation.”); see also AR 2404 (Feb. 11, 2005 FBO Price Analysis approved by CO). ISC’s re-argument to the contrary is not persuasive. See Info. Scis. II, 75 Fed. Cl. at 413-14 (“GSA must reconsider the competitive range determination. Once GSA establishes a competitive range that complies with the terms of the Solicitation and the FAR, a newly appointed SSA may utilize existing technical and price evaluations to determine which proposal represents the ‘best value’ to the agency.”) (emphasis added). The record evidences that the CO did not violate FAR, act contrary to the Solicitation, nor fail to comply with the court’s order. See AR 2559-61.  (Information Sciences Corp., Gallagher, Hudson, & Hunsberger, Inc. (d/b/a Development InfoStructure or DEVIS)  v. U. S. and Symplicity Corporation, No. 07-744, March 18, 2008) (pdf)

U. S. Court of Federal Claims - Listing of Decisions

For the Government

For the Protester