Government Unfairly Evaluated Cost/Price Proposal

The government breached the "fair opportunity to be considered" provision in a multiple-award, indefinite delivery/indefinite quantity contract because, by changing the evaluation method, it conducted a flawed cost/price evaluation of the contractor's proposal. The dispute arose following the government's award of a delivery order for aircraft training devices under an ID/IQ contract. The contract stated all multiple award contractors would "be provided a fair opportunity to be considered for each order." The contractor claimed the government breached this provision by conducting an improper price evaluation. According to the contractor, the government's "quantified risk assessment" negated the cost/price factor by in effect substituting the parties' estimated future modification costs in their technical/management proposals for each offeror's proposed fully-loaded hourly rates for government-estimated hours for future modifications.

The contracting authority created the QRA to determine why the numbers in the two competing proposals had such a large disparity. A QRA based on the offeror's technical/management proposal roadmap estimated costs might have been appropriate in evaluating the realism of the offeror's proposed future modification costs if those costs were based on the offeror's estimated hours as well as its proposed hourly rates. However, the estimated hours for future modification costs were specified by the government in the request for order proposal and the offeror proposed only the hourly rates. It was fundamentally unfair, therefore, for the government, without notice in the RFOP, to use an offeror's technical/management proposal roadmap costs to evaluate the realism of its future modification costs that were required to be based on government-estimated hours. The QRA was a significant factor in the award decision, and consequently the losing contractor was denied a fair opportunity to be considered for the award. As a result of the government's breach, the contractor was entitled to recover the costs it incurred to prepare and submit its proposal as reliance damages. (L-3 Communications Corp., ASBCA, ¶92,291)

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