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Despite Government Error, Protest Was Denied

A contract award for information technology support services was upheld because the protester was not prejudiced by the government's failure to amend a solicitation pricing requirement. On cross-motions for judgment on the administrative record, the court held the government violated FAR 15.206(a) by accepting the awardee's nonconforming pricing for a contract line item without amending the solicitation. The court found the awardee's price for the CLIN did not comply with requirements in the request for proposals for including all relevant hardware and software costs and listing the constituent elements separately. Thus, the government's application of the RFP's pricing requirements represented a change in the solicitation's evaluation terms that should have resulted in a formal modification to the solicitation.

"Huge" Price Disparity

However, "not every error justifies overturning an award," and a protester must show it had "a substantial chance it would have received the contract award but for that error." Also, to demonstrate prejudice in the context of a failed solicitation amendment, the protester must show it would have altered its proposal to its competitive advantage had it received an opportunity to respond to an altered requirement. Here, the price disparity between the protester's proposal and the awardee's was "huge," and it was an important factor in the best value determination given the similar technical ratings the offerors received. Importantly, the RFP advised offerors "price may become a determinative factor" as non-price factors reached parity, and source selection documents made clear, even under the best of scenarios, the protester would not have received the contract. Also, the protester's argument prejudice could be presumed where the government violates a procurement regulation lacked merit. To take such a course, the court concluded, would "untether [the court's] bid protest jurisdiction from its moorings" in light of the Court of Appeals for the Federal Circuit's instruction (see 53 CCF 79,108) to sustain a protest only upon a "prejudicial" violation of a statute or regulation. (Electronic Data Systems, LLC v. U.S., et al., FedCl, 54 CCF 79,333)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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