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Competitive Range Determination -- Unreasonable Inclusion in


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This case cites the Champion Business Services GAO Protest Decision which holds that an offeror cannot challenge its INCLUSION in the competitive range: In re Mech. Equip. Co., 2004 Comp. Gen. Proc. Dec. P192 / Matter of: Mechanical Equipment Company, Inc.; Highland Engineering, Inc.; Etnyre International, Ltd.; Kara Aerospace, Inc., B-292789.2, B-292789.3, B-292789.4, B-292789.5, B-292789.6, B-292789.7 from December 2003:

"Kara also asserts that its proposals were improperly included in the competitive range, given the late imposition of the funding cap and the agency's failure to advise that Kara's price was noncompetitive. However, a protester's challenge against the agency's inclusion of its proposal in the competitive range does not constitute a valid basis for protest that our Office will consider. Verestar Gov't Servs. Group, B-291854, B-291854.2, Apr. 3, 2003, 2003 CPD P 68 at 8 n.4; Champion Bus. Servs., Inc., B-290556, June 25, 2002, 2002 CPD P 109 at 2.

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Guest Vern Edwards

The GAO will not entertain such protests. See 4 CFR 21.5(j). I do not believe that the Court of Federal Claims has handled such a protest or that it has ruled on whether or not it will entertain such a protest.

Historically, I know of only one or two cases in which a protester complained that it should have been eliminated from the competitive range. The most famous such case was a decision was by the old GSBCA when it had bid protest jurisdiction. It sustained the protest. The case was SMS Data Products Group, GSBCA No. 8589-P, 87-1 BCA ¶ 19,496. GSBCA ordered the agency to pay excess proposal costs. The parties settled out of court after the decision and the Federal Circuit ordered the GSBCA to accept the settlement. The GSBCA decision is famous for this comment by Judge Phillips:

In reply to any assertion that the contracting officer should have ejected SMS from the competitive range in early February 1986, after he had received the reports from the mandatory requirements and greatest value panels on SMS's revised technical proposal of January 6, 1986, [the intervenor] and the [Government - the EPA] regurgitate the same swill that we were offered by the contracting officer. We find this offering no more palatable on the second serving than it was on the first.

Earlier in the decision, Judge Phillips said:

SMS had virtually no chance of receiving the contract award, and yet the contracting officer retained SMS in the competitive range. Transcript at 120–21. At the hearing in these proceedings, the contracting officer testified that he did so because it had by then been determined that a further amendment to the solicitation would be necessary and that SMS would thus be given an opportunity to revise its technical and cost proposals. Id. We find this testimony disingenuous, and we place no credence in it.
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