Government Contracts Ineligible Offeror Was Interested Party to Challenge Evaluation
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Wednesday, March 25, 2020

Ineligible Offeror Was Interested Party to Challenge Evaluation

By Government Contracts Editorial Staff

Although the protester was ineligible for award, it was still an interested party because the competition included only two offerors and the protester alleged the awardee should have also been found ineligible for award. The government received two proposals for the installation of a crane at the Dalles Lock and Dam in Oregon. After reviewing the proposals and the evaluation results, the contracting officer, acting as the source selection authority, compared the offerors’ prices to each other and to the independent government estimate of $17.7 million. The CO found that because the protester’s price of $26.6 million was over 50 percent higher than the IGE, and over 20 percent higher than the awardee’s price, the protester’s price was unreasonably high and its proposal was unawardable under FAR 15.402(a). FAR 15.402(a) requires COs to “[p]urchase supplies and services from responsible sources at fair and reasonable prices.” The CO then selected the other offeror’s $21.3 million proposal for award. The protester challenged the evaluation under all four non-price evaluation factors.

Only Two Proposals. The Comptroller General rejected the government’s argument that the protester was not an interested party to challenge the evaluation of proposals because its proposed price was found to be unreasonably high. Generally, a party will not be deemed to have the necessary economic interest to maintain a protest if it would not be in line for award if its protest were sustained (GAO 21.0(a), 22 CGEN ¶112,346). Here, however, the protester was interested to contest the evaluation of the awardee’s proposal under two evaluation factors because it asserted that the awardee’s proposal should have been found unacceptable and therefore ineligible for award under these factors. If the protester prevailed on either challenge, both proposals would have been be unawardable, and there would have been no intervening offeror in line for award. Under these circumstances, the Comptroller General usually recommends reopening the competition or resoliciting the requirement. Since the protester would then be in a position to submit a revised proposal or participate in the resolicitation, it had a sufficient economic interest to qualify as an interested party eligible to challenge the evaluation of the awardee’s proposal. The protester was not an interested party to pursue its other protest grounds, because it did not argue the evaluation under one factor should have rendered the awardee’s proposal unacceptable, and the other protest ground, if sustained, would not have resulted in a situation where no offerors remained eligible for award. (REEL COH Inc., 35 CGEN ¶116,721)

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