Protest of Price Evaluation Methodology Was Untimely

The Court of Federal Claims dismissed a post-award bid protest of a solicitation's price evaluation methodology for failure to state a claim because the alleged error was clear on the face of the request for quotations and the protester did not raise its challenge prior to the deadline for submitting quotations. The protest arose from a best value RFQ for information technology services issued to Federal Supply Schedule contractors. With respect to the price evaluation, the RFQ stated the government would "[s]imply compare the minimum "team" discount percentage proposed, and [would] not apply the proposed discount to any of the underlying labor rates/support products contained in any of the proposed GSA Schedule contracts." The protester argued the government acted arbitrarily and capriciously by failing to consider actual prices in its award decision. According to the protester, the awardee offered a higher percentage discount, but the higher discount yielded a higher net price because its FSS rates were higher than the protester's.

Waiver

At oral argument, the government acknowledged it "should have looked at the bottom line prices." However, the protest was barred by the decision of the Court of Appeals for the Federal Circuit in Blue & Gold Fleet, L.P. v. U.S. (51 CCF ś78,774), which held "a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the [CFC]." Here, the protester sought information about the price evaluation provision in a question and answer exchange, which showed it was aware of the alleged error in advance of the RFQ's closing date. The protester's argument it understood other parts of the RFQ to mean the government would compare the bottom line prices and the percentage discounts, and that it was challenging the government's failure to follow this price evaluation scheme, was "unavailing." At the very least, the protester should have realized the language of the price evaluation provision did not comport with its understanding of the overall scheme. (Unisys Corp. v. U.S., et al., FedCl, 53 CCF ś79,178)

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