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Where Non-Price Ratings Identical, Agency Wasn’t Required to Choose Lower-Priced Offeror

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Koprince Law LLC

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In a best value competition, when two offerors receive identical adjectival scores on the non-price factors, one might assume that the procuring agency would be required to award the contract to the lower-priced offeror.

Not so.  In a recent bid protest decision, the GAO held that where two offerors received identical scores on three non-price factors, the agency could still elect to award the contract to the higher-priced offeror.

GAO’s decision in Valiant Government Services, LLC, B-416488 (Aug. 30, 2018) involved an Army Corps of Engineers task order solicitation for operations and maintenance services.  The solicitation called for proposals to be evaluated on a best value basis, considering price and three non-price factors (Experience, Technical Approach, and Past Performance).

Only two offerors, Valiant Government Services, LLC and J&J Maintenance, Inc., submitted proposals.  After evaluating those proposals, the Corps assigned each offeror a “Very Relevant” score for Experience, an “Outstanding” score for Technical Approach, and a “Substantial Confidence” score for Past Performance.  Valiant’s price was about $300,000 lower–$43,551,418 versus $43,846,929 for J&J.  Nevertheless, the Corps determined that J&J offered the best value, and awarded the task order to J&J.

Valiant filed a bid protest with GAO.  Among its allegations, Valiant argued that the Corps was required to award it the contract because Valiant’s non-price scores were identical to J&J’s, and Valiant was lower-priced.

The GAO wrote that “[w]hen conducting a best-value tradeoff analysis . . . an agency may not simply rely on the assigned adjectival ratings to determine which proposal offers the best value because evaluation scores–whether they are numerical scores, colors, or adjectival ratings–are merely guides to intelligent decision-making and often reflect the disparate, subjective judgments of the evaluators.”  Therefore, “a tradeoff analysis should be based upon a qualitative comparison of the proposals consistent with the evaluation scheme.”

In this case, although the two offerors received identical Past Performance and Experience scores, the underlying source selection documentation revealed that J&J had “superior past performance ratings” and “a greater percentage of exceptional ratings on all related task orders.”  Additionally, while the two companies received the same adjectival score for Technical Approach, the Corps “concluded that J&J’s approach was superior because it offered technically advanced management tools.”  Therefore, the Corps reasonably determined that J&J’s advantages were worth its higher price, “especially considering that the price differential was less than 1 percent of the total price of the contract.”

The GAO dismissed a portion of Valiant’s protest and denied the remainder.

When an agency assigns two companies the same adjectival scores for a best value solicitation’s non-price factors, the agency typically awards to the lower-priced offeror.  But, as Valiant Government Services demonstrates, the agency isn’t required to do so, if it has good reason to consider one offeror’s proposal superior despite the identical underlying scores.


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