Government Contracts Awardee Shouldn’t Have Been Included in Competitive Range
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Monday, October 8, 2018

Awardee Shouldn’t Have Been Included in Competitive Range

By Government Contracts Editorial Staff

A contract award for technical and administrative support services was arbitrary and capricious, the Court of Federal Claims ruled, because the government improperly included the awardee in the competitive range, unreasonably evaluated the awardee’s proposal under the staffing plan and key personnel factor, and treated the offerors unequally. The request for proposals restricted competition to participants in the 8(a) Business Development program. Also, the RFP contained the limitation on subcontracting clause (FAR 52.219-14), which required the offeror/contractor to agree that “[a]t least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern.” The court first found the awardee’s initial proposal, which indicated that the prime contractor would only be completing 40 percent of the work, did not comply with the clause. Ignoring the non-responsiveness of the awardee’s bid and including it in the competitive range was improper.

Unreasonable Evaluation. Further, the court found the awardee’s “superior” rating under the staffing plan and key personnel factor was inconsistent with the terms of the RFP. The awardee’s proposal was silent as to its experience and capabilities in the recruiting, hiring, and employee retention areas, and it instead relied on the capabilities of its large business subcontractor. To merit a “superior” rating under the staffing plan and key personnel evaluation factor, an offeror had to have “exceptional strengths that would significantly benefit the [g]overnment” and a very low risk of unsuccessful performance, but the protester’s proposal was not almost devoid of risk. The awardee operated out of a private residence, with only three employees, one of whom was a full-time student. Also, notwithstanding the skills of its subcontractor, the awardee had limited relevant past experience. This was directly contrary to the RFP requirements.

Disparate Treatment. Since the awardee’s original proposal did not conform to the RFP’s limitation on subcontracting and staffing plan requirements, it should not have been included in the competitive range. However, the government continued in its unfair and unequal treatment by failing to provide a rational explanation for including the awardee in the competitive range, instead opting to reevaluate the proposals to “further tip the scales against [the protester].” This decision “smack[ed] of disparate treatment.” The government relaxed its requirements by including the awardee in the competitive range, and it provided no cognizable rationale for its unequal treatment of offerors. Since the government’s “failure to articulate any basis for its disparate treatment … renders [a] procurement fundamentally irrational and invalid,” the court held the contract award was arbitrary and capricious and granted the protester permanent injunctive relief. (2M Research Services, LLC v. U.S., et al., FedCl, 62 CCF ¶81,466).

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