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GAO's Recommendation Flawed, But Corrective Action Rational

A protest challenging corrective action recommended by the Government Accountability Office was denied by the Court of Federal Claims because, although the GAO's recommendation to amend a solicitation's build-to-budget language was not rational, it was reasonable for the GAO to conclude the government departed from the solicitation's terms and did not meaningfully evaluate the protester's technical proposal. The awardee of a design-build contract for canal closures and pumps challenged the government's decision to follow the GAO's recommendation (26 CGEN 113,456) to amend the solicitation, accept revised proposals, and make a new source selection decision. One of the GAO's findings was that, except for the protester, "offerors were misled as to how price would be considered" and GAO recommended the government amend the solicitation's build-to-budget language to clarify it would consider offers priced lower than the budget amount. However, the solicitation stated that "[o]ffers that exceed the contract budget will be eliminated from the competition ...." Therefore, offerors that believed they were not allowed to propose a price below the stated budget amount would have thought every offer must be exactly at the budget amount. This would effectively eliminate price as a factor and violate statutory prescriptions to include price as an evaluation factor for competitive proposals. It was not reasonable for an offeror to believe an agency could dispense with the statutory requirement that price be an evaluation factor, and the solicitation's best value tradeoff language created a patent ambiguity requiring challenge prior to the submission of proposals. The GAO failed to consider the legality of an evaluation scheme that removed price as a factor, the reasonableness of believing such a scheme was prescribed, or the timeliness of any challenges based on such a scheme.

No Meaningful Evaluation

The GAO also determined the request for proposals required the evaluation of the technical proposals to include a review of referenced supporting documentation, and the government failed to "meaningfully evaluate[]" whether the protester's foundation design would meet solicitation requirements. The protester argued there was no need for a detailed design analysis prior to award because it was a design-build contract and offerors only had to include "design concepts" in their proposals. However, the GAO's interpretation of the solicitation's evaluation method was correct. The RFP required offerors to submit design concepts that met the requirements and explain the concepts in a brief technical proposal that could reference supporting documentation in another volume. Referenced supporting documents were required to be reviewed as part of the technical proposal evaluation. The GAO also had a rational basis for determining the government failed to evaluate the protester's foundation design meaningfully because there was no documentation or testimony indicating the evaluators reviewed the supporting documentation referenced in the protester's technical proposal. (CBY Design Builders v. U.S., et al., FedCl, 56 CCF 79,821)




(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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