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FAR
19.1102:
Use of price
evaluation factor |
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Comptroller
General - Key Excerpts |
GSA responds, as a preliminary matter, that the protest is
essentially academic because the contracting officer lacked the
authority to include the SDB price evaluation adjustment in the
solicitation, so that it could not be applied to Liberty or any
offeror. In this regard, the agency notes that the SBA, as well
as the Civilian Agency Acquisition Council, has advised civilian
agencies that the statutory authority for civilian agencies to
apply the SDB price evaluation adjustment expired, and no longer
was available, as of December 9, 2004. See Civilian Agency
Acquisition Council Letter 2004-04. Indeed, according to GSA,
the statutory authority for civilian agencies to apply the SDB
price evaluation adjustment in fact expired after September 30,
2003, that is, well before the September 22, 2004 issuance of
the solicitation. In any case, argues the agency, even if the
authority did not expire until December 2004, that would
preclude its applying the adjustment for Liberty even if we
otherwise agreed with Liberty's argument. We find GSA's position
to be without merit. While agencies have broad discretion in
making source selection decisions, their decisions must be
rational and consistent with the solicitation's stated
evaluation scheme; an agency may not announce one basis for
evaluation and award in the RFP and then evaluate proposals and
make award on a different basis. Marquette Med. Sys., Inc. ,
B-277827.5, B-277827.7, Apr.29, 1999, 99-1 CPD 90 at 5-6. Here,
whether or not the SDB price evaluation adjustment was properly
included in the solicitation, the fact remains that the
solicitation expressly provided for application of such an
adjustment on behalf of eligible SDB offerors, and GSA, through
its exchanges with Liberty prior to the submission of price
proposals, affirmatively led the firm to believe that the
adjustment would be applied in the event that Liberty
established its eligibility under FAR 52.21923. In this regard,
Liberty's chief operating officer has furnished a sworn
affidavit stating that Liberty submitted its price proposal with
the expectation that it would receive the SDB price evaluation
adjustment. We conclude that, having established an evaluation
scheme providing for an SDB preference, and having affirmatively
led Liberty to base its price proposal on the expectation that
it would benefit from the SDB price evaluation adjustment if it
established its eligibility, the agency cannot defend its
failure to accord Liberty the preference on the basis that the
preference in fact is not authorized. (Liberty
Power Corporation, B-295502, March 14, 2005) (pdf)
As noted above, FAR § 19.1102(a) instructs agencies to “[u]se
the price evaluation adjustment in competitive acquisitions in
the authorized NAICS Industry Subsector.” While we recognize
that a straightforward application of the provision may lead to
some anomalous results, we nonetheless think that the clause is
susceptible of only one reasonable interpretation: it is the
NAICS code applied to the acquisition, as opposed to the NAICS
code that applies to an offeror, that governs whether or not the
price evaluation adjustment applies. Accordingly, since the
NAICS code applied to this solicitation was 311421, which
corresponds to an ineligible industry, we find no basis upon
which to conclude that the Department of Agriculture violated
the FAR by failing to incorporate a clause providing for a price
evaluation adjustment for SDBs into the solicitation. (Triune Associates,
B-292005, May 13, 2003) (pdf) |
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Comptroller
General - Listing of Decisions |
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For
the Government |
For
the Protester |
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American Analytical & Technical
Services, Inc., B-292100, June 11, 2003 (pdf) |
Liberty Power Corporation,
B-295502, March 14, 2005 (pdf) |
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Triune Associates,
B-292005, May 13, 2003 (pdf) |
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