On August 29, 2016, the Air Force issued an RFP seeking base operations support services at an Air Force Base in Mississippi. The solicitation advised offerors that the agency would award the contract “to the proposal with the lowest evaluated price from among those proposals evaluated to be acceptable.” The RFP further stated that the technical evaluation team would evaluate the lowest-price offeror and then, as needed, evaluate higher priced offerors in order of price rank, to assign a rating of Acceptable or Unacceptable.
The protester, PAE, was found to be technically acceptable but had the second lowest price of all offerors and, thus, award was made to the lowest offeror. PAE subsequently filed a protest arguing that the agency performed an inadequate evaluation of unbalanced pricing and failed to evaluate the realism of offeror’s pricings.
In evaluating the protest, the GAO found that, absent a solicitation provision expressly or implicitly providing for a price realism evaluation, agencies are neither required nor permitted to conduct one in awarding a fixed-price contract. The GAO further found that, even though the solicitation required the agency to analyze whether the offerors’ prices were unbalanced, PAE failed to sufficiently allege that the awardee’s prices were overstated or unbalanced.
In dismissing the protest, the GAO found that PAE failed to allege a sufficient basis of protest because it had not alleged that the awardee’s prices were overstated or unbalanced and, thus, even where an agency acts in error, the GAO will not sustain a protest unless the protestor can show that it was prejudiced by the error. The GAO likewise found that PAE’s additional protest grounds, including failure to conduct meaningful discussions, were not a legally sufficient basis for a protest because the evaluation scheme challenged by PAE was not the type of deficiency required to be addressed during discussions.
About the Author:
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.
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