Protest Was Denied Despite FAR Violation

A protest of an award for ultrasonic flaw detectors used in aircraft inspections was denied by the Court of Federal Claims because the award was not made in an arbitrary and capricious manner, and the protester did not have a substantial chance of receiving the award in the absence of alleged improprieties. The solicitation stated the award would be based on a best value determination that would consider past performance and price. The protester argued the government improperly assessed its past performance and selected the awardee based on factors not stated in the solicitation. The protester claimed its past performance merited an "unknown" confidence rating, rather than the "little confidence" rating it received. According to the protester, had it received an "unknown" rating, the government would have been precluded from considering the awardee's "satisfactory" confidence rating and would have been required to grant the award based solely on price. Therefore, the protester, whose price was substantially lower than the awardee's, claimed the government's failure to evaluate its past performance properly resulted in a flawed best value determination and an improper award.

On cross-motions for judgment on the administrative record, the record showed the government's evaluation was rational and any errors did not result in competitive prejudice. Pursuant to FAR 15.305(a)(2)(iv), which was incorporated into the solicitation, the fact the government deemed the protester's past performance not relevant to the solicitation requirements meant the government was obligated to assign it an "unknown" rating. However, although the government should have rated the protester's past performance as "unknown" instead of "little confidence," even if the protester had received the "unknown" rating, it would not have won the award because under the solicitation terms, the awardee's "satisfactory" confidence rating would still have ranked higher than a rating of "unknown." The protester's argument the award should have been based solely on price was rejected because the solicitation specifically provided for a past performance/price trade-off and stated past performance would be "considered significantly more important than price." Additionally, the record refuted the protester's allegations it was prejudiced by the fact it was merely a distributor of the solicited items, as opposed to a manufacturer, and portions of the award decision the protester claimed lacked supporting rationale were fully explained elsewhere in the source selection document. (Precision Images, LLC v. U.S., et al., FedCl, 52 CCF ¶78,868)

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