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2 Ray Pushkar, Partner, McKenna Long & Aldridge LLP November 8, :40 a.m. – 12:40 p.m. Lessons Learned: Recent GAO Protest Decisions on “Best Value” Procurements

3 Background and Refresher Competition in Contracting Act of 1984 (“CICA”) –Authorized agencies to make an award to other than the lowest priced offeror based on an integrated assessment of multiple evaluation factors. –Possibility of award to other than the lowest-priced offeror based on quality and past performance was encouraged as part of acquisition reform during the 1990s.

4 Background and Refresher –Tradeoffs among evaluation factors are presently authorized and discussed in Federal Acquisition Regulation (“FAR”) Subpart –An agency can obtain best value in negotiated acquisition by using one or a combination of source selection approaches. In different types of acquisitions, the relative importance of cost or price may vary.

5 –For example, in acquisitions where the requirement is clearly definable and the risk of unsuccessful contract performance is minimal, cost or price may play a dominant role in source selection. –The less definitive the requirement, the more development work required, or the greater the performance risk, the more technical or past performance considerations may play a dominant role in source selection. Background and Refresher

6 A tradeoff process is appropriate when it may be in the best interest of the government to consider award to other than the lowest priced offeror or other than the highest technically rated offeror. Background and Refresher

7 When using a tradeoff process, the following apply: –All evaluation factors and significant subfactors that will affect contract award and their relative importance shall be clearly stated in the solicitation; and Background and Refresher

8 When using a tradeoff process, the following apply: (cont’d) –The solicitation shall state whether all evaluation factors other than cost or price, when combined, are significantly more important than, approximately equal to, or significantly less important than cost or price. Background and Refresher

9 This process permits tradeoffs among cost or price and non-cost factors and allows the government to accept other than the lowest priced proposal. The perceived benefits of the higher priced proposal shall merit the additional cost, and the rationale for tradeoffs must be documented in the file in accordance with Background and Refresher

10 Recent Protest Issues Even though agencies may award contracts to other than the lowest-priced offeror, procuring officials still must consider price (or cost) as a significant evaluation factor when making “best value” source selections. See 10 U.S.C. § 2305(a)(2)(A); 41 U.S.C. § 253a(c)(1)(B); FAR § (c)(1).

11 DynCorp Int’l v. United States, 76 Fed. Cl. 528 (2007) Facts: DynCorp protested the Air Force’s decision to award a contract for aircraft maintenance services without discussion. DynCorp also protested the Air Forces request for clarifications from only one of the two prospective contractors. Holding: Protest denied because it is within the procuring official’s discretion whether or not to hold discussions with prospective contractors. The procuring agency also has the discretion to engage in clarification with only one of the two bidding contractors.

12 Freedom Lift Corp., B , Jan. 25, 2007, 2007 CPD ¶ 29. Facts: Freedom Lift protested the Department of Veterans Affairs’ award of a lower rated, lower priced contract to Bruno Independent Living Aids and a higher-rated, higher priced contract to Harmar Mobility as inconsistent and thus unreasonable. Holding: Protest denied because the trade-off considerations for best value determinations between the two line items were distinct. The agency was reasonable in determining in one case that the technical advantages of one line item were worth a price premium but that the technical advantages of a separate line item were not worth a similar price premium.

13 L-3 Commc’ns Corp., BT Fuze Prod. Div., B , B , Mar. 14, 2007, 2007 WL (Comp.Gen.). Facts: L-3 Communications Corporation, BT Fuze Products Division protested the Army’s evaluation of proposals and subsequent award of the a contract for 105-millimeter illumination cartridges to SNC Technologies, via Canadian Commercial Corporation. Holding: Protest denied because L-3’s proposal failed to demonstrate a similar level of expertise and understanding as SNC and was overly dependent upon its subcontractor for expertise.

14 Midland Supply, Inc., B , May 14, 2007, 2007 WL (Comp.Gen.). Facts: Midland Supply protested the award of a contract to Danaher Tool Group under a request for proposal (RFP) for commercial line items (hand tools, non-edged, non-powered) issued by the General Services Administration (GSA). Holding: Protest sustained because GSA mischaracterized the relative quality of the offeror’s on-time delivery record, a key factor in the best value determination.

15 Kellogg Brown & Root Services, Inc., B , Jun. 22, 2007, 2007 WL (Comp.Gen.). Facts: KBR protested the Navy’s award of three global contingency construction contracts to Flour International, URS-IAP, and Atlantic Contingency Constructors because of unreasonable technical evaluations. Holding: Protest denied because the Navy’s decisions were reasonable, and supported by a comprehensive and detailed record that was consistent with the solicitation’s evaluation criteria.

16 Benchmade Knife Co., B , B , July 16, 2007, 2007 WL (Comp.Gen.). Facts: Benchmade protested the DoD’s award of a contract for combat knives to Gerber because an improper time period was used when calculating the Automated Best Value System (ABSV) score upon reevaluation of the proposals. Holding: Protest denied because the agency’s use of the same information for the evaluation and subsequent reevaluation was supported by the record.

17 Midwest Metals, B , July 17, 2007, 2007 WL (Comp.Gen.). Facts: Midwest Metals protested the Army’s issuance of a delivery order to Alpha Technologies under a request for quotations (RFQ) for headless pins and round nuts because the Army used the Past Performance Information Retrieval System-Statistical Reporting (PPIRS-SR) in measuring performance risk. Holding: Protest denied as untimely because the Army’s intention to use PPIRS-SR was clearly indicated on the RFQ. Further, the Army’s consideration of both price and past performance was supported by the record.

18 Zolon Tech, Inc., B , Sept. 18, 2007, 2007 WL (Comp.Gen.). Facts: Zolon protested the establishment of a blanket purchase agreement (BPA) with Vistronix issued by the Department of Agriculture, Natural Resources Conservation Service (NRCS), for information systems development, support, and maintenance services. Holding: Protest denied because NRCS reasonably found weaknesses in Zolon’s technical evaluation because it included technical experts from Colorado State University (CSU) as consultants and not subcontractors. Further, since Zolon’s lower price quotation included lower proposed labor rates than those under the incumbent contract, NRCS was reasonable in finding these lower rates represented a high risk in transition and retention of incumbent personnel.