DISCRETION OF THE SOURCE SELECTION AUTHORITY TO CHANGE RATINGS

Negotiated procurements conducted pursuant to Federal Acquisition Regulation (“FAR”) Part 15 are structured with one Source Selection Authority (“SSA”), who acts on behalf of the Agency head in making a source selection. (Remember: the U.S. Code provides, and FAR 1.601(a) repeats that “[u]nless specifically prohibited by another provision of law, authority and responsibility to contract for authorized supplies and services are vested in the agency head.”) The FAR provides as follows: FAR 15.303 Responsibilities. (a) Agency heads are responsible for source selection. The contracting officer is designated as the source selection authority, unless the agency head appoints another individual for a particular acquisition or group of acquisitions. (b) The source selection authority shall— Establish an evaluation team, tailored for the particular acquisition, that includes appropriate … Continue reading

GAO APPROVES NEW BEST VALUE METHOD: HIGHEST TECHNICALLY RATED WITH FAIR AND REASONABLE PRICE; COURT OF FEDERAL CLAIMS AGREES

The Government Accountability Office (“GAO”) recently deemed as permissible the use of the “highest technically rated offerors with a fair and reasonable price” evaluation scheme in order to achieve best value. Sevatec, Inc. et al., B-413559.3 et al, Jan. 11, 2017. In a preceding case, the Court of Federal Claims opined that a similar evaluation methodology, with no tradeoff of cost and technical factors, complied with FAR 15.101. Octo Consulting Group, Inc. v. United States, 117 Fed Cl. 334 (2014). Sevatec concerned the Alliant 2 procurement by the General Services Administration (“GSA”), a multiple award, indefinite quantity set of contracts for information technology services. The RFP provided that GSA would select 60 awardees using a “highest technically rated with a fair and reasonable price” evaluation … Continue reading

THE FAR UNBALANCING ACT

The Government Accountability Office (GAO) has considered numerous protests alleging that an offeror’s bid was “unbalanced.”  Only a small number of these protests have been sustained.  In Al-Tahouna Al-Ahliah Gen. Trading & Contracting Co, WLL, et al, B-412769 et al, May 9, 2016, the GAO concurred in an agency finding that an offer was unbalanced, and that the agency had properly refused to make award to that offeror.  The case shows how important it is, under the Federal Acquisition Regulation (“FAR”) rewrite that was performed in 1997, for the agency to conduct a risk analysis when considering a potentially unbalanced offer. Prior to 1997, when the FAR was rewritten, any offer that was “materially unbalanced” could be rejected by an agency.  A materially unbalanced offer … Continue reading

AGENCIES MUST TREAT CONTRACTORS FAIRLY WHEN USING RFQs

The Government wants have its cake and eat it too—by conducting competitions under the General Services Administration (“GSA”) Multiple Award Schedule contracts using Requests for Quotations (“RFQ”), but not abiding by the rules in the Federal Acquisition Regulation (“FAR”).  The Government seems to think that because RFQs are different from other types of solicitations, the FAR rules don’t apply.  Both the Court of Appeals for the Federal Circuit and the Government Accountability Office (“GAO”) have both held that the FAR rules apply. In Hanel Storage Systems, L.P., B-409030.2, Sept. 15, 2014, 2015 CPD ¶ 88, the GAO considered a procurement by the Department of Veterans Affairs (“VA”) for vertical storage units at a VA medical center.  VA issued an RFQ pursuant to GSA’s Multiple Award … Continue reading

IMPROPERLY ASSIGNING TECHNICAL RISK TO TWO EVALUATION CATEGORIES

The Government Accountability Office (“GAO”) is required to report to Congress annually in reports known as the “Annual Report on Bid Protests.”  Congress added a new requirement to the report in fiscal year (“FY”) 2013, requiring that it include “a summary of the most prevalent grounds for sustaining protests during the preceding year.”  31 U.S.C. § 3554(e)(2).  All three of the FY 2013-15 GAO Annual Reports on Bid Protests identified “failure to follow the evaluation criteria [in the solicitation]” as one of the most prevalent grounds for sustaining protests.  Now comes the GAO with a new twist—sustaining a protest because an agency assigned a weakness to two separate evaluation categories, and thereby failed to follow the solicitation evaluation criteria.  Innovative Test Asset Solutions, LLC, B-411687, … Continue reading