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Protest Sustained for Improper Competitive Range Determination

A protest of an award for optical rifle sights was sustained by the Court of Federal Claims because the government's competitive range determination and proposed discussions with the awardee were arbitrary, capricious, and contrary to law. The protester challenged the government's decisions to eliminate it from the competitive range and hold discussions with the awardee, who was the sole remaining offeror. In ruling on the cross-motions for judgment on the administrative record, the court closely scrutinized the record because the government established a competitive range of one, necessitating a thorough examination of the reasons the government had for eliminating all the other competitors from the procurement. The court found the protester received disparate treatment as a result of the government's decision to create a competitive range of one offeror, which in turn gave the awardee the opportunity to revise its proposal through discussions. Also, the government allowed the awardee to proceed to award without performing additional endurance-live fire essential testing, as required by the solicitation. By relaxing this solicitation requirement for the awardee, the government impeded the full and open competition requirements of the Competition in Contracting Act (10 USC 2305(a)(1)(A)(i)), and therefore acted in an arbitrary and capricious manner.

The court also found the government failed to abide by the evaluation procedures set forth in the solicitation. The record showed testing irregularities that directly contravened the solicitation's evaluation plan. Also, the court found evaluation irregularities, including an improper assignment of color ratings, which compromised the integrity and accuracy of the government's competitive range determination. Moreover, the government improperly amended the evaluation criteria during the ongoing bid sample testing. Another unreasonable action taken by the government involved its failure to seek clarification about, or otherwise properly secure, the protester's optic, which failed endurance-live testing. Taking these factors into account, the government's evaluation was irrational and fundamentally flawed. The court granted the protester's request for a permanent injunction because the protester succeeded on the merits, the protester demonstrated it would suffer irreparable harm, a balance of the hardships favored the protester, and the public interest was served by injunctive relief. (L-3 Communications Eotech, Inc. v. U.S., et al., FedCl, 52 CCF 79,011)


(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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