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FAR 19.1102:  Use of price evaluation factor

Comptroller General - Key Excerpts

GSA responds, as a preliminary matter, that the protest is essentially academic because the contracting officer lacked the authority to include the SDB price evaluation adjustment in the solicitation, so that it could not be applied to Liberty or any offeror. In this regard, the agency notes that the SBA, as well as the Civilian Agency Acquisition Council, has advised civilian agencies that the statutory authority for civilian agencies to apply the SDB price evaluation adjustment expired, and no longer was available, as of December 9, 2004. See Civilian Agency Acquisition Council Letter 2004-04. Indeed, according to GSA, the statutory authority for civilian agencies to apply the SDB price evaluation adjustment in fact expired after September 30, 2003, that is, well before the September 22, 2004 issuance of the solicitation. In any case, argues the agency, even if the authority did not expire until December 2004, that would preclude its applying the adjustment for Liberty even if we otherwise agreed with Liberty's argument. We find GSA's position to be without merit. While agencies have broad discretion in making source selection decisions, their decisions must be rational and consistent with the solicitation's stated evaluation scheme; an agency may not announce one basis for evaluation and award in the RFP and then evaluate proposals and make award on a different basis. Marquette Med. Sys., Inc. , B-277827.5, B-277827.7, Apr.29, 1999, 99-1 CPD 90 at 5-6. Here, whether or not the SDB price evaluation adjustment was properly included in the solicitation, the fact remains that the solicitation expressly provided for application of such an adjustment on behalf of eligible SDB offerors, and GSA, through its exchanges with Liberty prior to the submission of price proposals, affirmatively led the firm to believe that the adjustment would be applied in the event that Liberty established its eligibility under FAR 52.21923. In this regard, Liberty's chief operating officer has furnished a sworn affidavit stating that Liberty submitted its price proposal with the expectation that it would receive the SDB price evaluation adjustment. We conclude that, having established an evaluation scheme providing for an SDB preference, and having affirmatively led Liberty to base its price proposal on the expectation that it would benefit from the SDB price evaluation adjustment if it established its eligibility, the agency cannot defend its failure to accord Liberty the preference on the basis that the preference in fact is not authorized. (Liberty Power Corporation, B-295502, March 14, 2005) (pdf)

As noted above, FAR 19.1102(a) instructs agencies to [u]se the price evaluation adjustment in competitive acquisitions in the authorized NAICS Industry Subsector. While we recognize that a straightforward application of the provision may lead to some anomalous results, we nonetheless think that the clause is susceptible of only one reasonable interpretation: it is the NAICS code applied to the acquisition, as opposed to the NAICS code that applies to an offeror, that governs whether or not the price evaluation adjustment applies. Accordingly, since the NAICS code applied to this solicitation was 311421, which corresponds to an ineligible industry, we find no basis upon which to conclude that the Department of Agriculture violated the FAR by failing to incorporate a clause providing for a price evaluation adjustment for SDBs into the solicitation.  (Triune Associates, B-292005, May 13, 2003)  (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
American Analytical & Technical Services, Inc., B-292100, June 11, 2003 (pdf) Liberty Power Corporation, B-295502, March 14, 2005 (pdf)
Triune Associates, B-292005, May 13, 2003  (pdf)  
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