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Unequal Discussions and Scoring Were Valid Protest Grounds

The government's evaluation of subcontracting plans was improper, according to the Court of Federal Claims, because it conducted unequal discussions and did not sufficiently document its scoring of the protester's revised proposal. This post-award bid protest challenged contract awards --issued under the Advance Contracting Initiative --for debris removal in anticipation of a natural or man-made disaster. In challenging the evaluation, the protester established the government's discussions regarding the need to address subcontracting goals for Historically Black Colleges and Universities/Minority Institutions were misleading, incomplete, and unequal. During discussions with the protester, the government did not mention the protester's failure to address HBCU/MI goals in its proposal. However, the government raised this same failing with two awardees. In response to those discussions, the awardees revised their proposals and the government deemed these revisions a strength. In contrast, the source selection decision stated the protester "lost points in the evaluation for not addressing efforts to involve HBCUs and MI. "
Prejudicial Actions

Although the solicitation was ambiguous as to whether offerors were required to address a specified HBCU/MI utilization goal of "zero," the government's discussions with the awardees resolved this ambiguity, but the discussions with the protester did not. These actions were a clear and prejudicial violation of FAR 15.306(e)'s requirement for government personnel to refrain from engaging in conduct that favors one offeror over another. The protester further argued the government failed to credit its revised proposal for addressing past performance in meeting subcontracting goals. During discussions, the government advised the protester that its proposal failed to discuss the small business utilization goal. In response, the protester included a discussion of its past performance and showed it exceeded the small business goal under a prior contract. The record, however, lacked evidence to indicate whether the government considered the protester's amplified information or acted arbitrarily in ignoring the revisions. As such, the court sustained the protest on these grounds. (AshBritt, Inc. v. U.S., et al., FedCl, 53 CCF 79,134)

(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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