Government Contracts Evaluation and Adjustment Were Inconsistent With RFP
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Wednesday, March 4, 2020

Evaluation and Adjustment Were Inconsistent With RFP

By Government Contracts Editorial Staff

A protest of a fixed-price contract award for pharmacy benefits management services was sustained because the technical evaluation and an adjustment to the protester’s proposed price were unreasonable. The request for proposals required the awardee to furnish drug utilization review services as part of contract performance. The evaluators credited both the protester and the awardee with providing a full complement of clinical DURS, but the government also made an upward adjustment to the protester’s total evaluated price to account for the cost associated with providing full-scale clinical DURS. The government ultimately selected the awardee’s $614 million proposal, concluding its technical superiority merited a price premium. According to the protester, the RFP did not call for full-scale clinical DURS, the government erred in assigning credit for full-scale clinical DURS, and had it actually proposed full-scale clinical DURS, the protester would have priced them substantially differently than the government did in its adjustment.

Not RFP Requirement. The Comptroller General agreed with the protester, finding the RFP did not call for full-scale clinical DURS, neither party actually proposed full-scale DURS, and the adjustment was inconsistent with the RFP and applicable law. The government identified no RFP provision that required full-scale clinical DURS—in fact, no provision even used the phrase “clinical DUR services”—and the contemporaneous record reflected the government’s apparent understanding the RFP did not contemplate full-scale clinical DURS. The protester’s and the awardee’s proposals both clearly offered clinical DURS only where patient safety was at issue, as required by the RFP. However, the government sought to include the provision of full-scale clinical DURS as part of the awardee’s proposal and gave the protester credit for offering such services, even though neither party actually offered those services.

Disparate Treatment. Moreover, the evaluation of the proposals for full-scale clinical DUR programs was disparate: the government assigned a significant strength to the awardee based on the erroneous conclusion that it offered full-scale clinical DURS, while at the same time assigning only a strength to the protester. Finally, nothing in the RFP contemplated adjustments to the offerors’ proposed prices, and FAR 15.404-1(d)(3) expressly prohibits the government from making such adjustments in the context of a fixed-price contract. The Comptroller General recommended the government amend the RFP to clarify its actual requirements for DUR-related services; solicit, obtain, and evaluate revised proposals; and make a new source selection decision. (PMSI, LLC, 35 CGEN ¶116,696)

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