Government Contracts Monitor

No Surprise Here: GAO Upholds an Agency’s Reasonable Evaluation

June 2, 2014

In a fairly straightforward opinion, the Government Accountability Office (GAO) denied a protest challenging the award of a contract based on the argument that the Department of the Army improperly evaluated price proposals. In Dynamix Consulting Corporation, Inc., B-409501 (Comp. Gen. May 1, 2014), GAO reminded protesters that the evaluation of a proposal is a matter within the agency’s discretion and is not revisited or overturned unless the record reveals an award was unreasonable or inconsistent. Additionally, GAO explained that any argument regarding confusing RFP instructions is untimely when raised after award has been made.

The protester, Dynamix, challenged the award of a contract to Al Dyer (Dyer) under a request for proposals (RFP) issued as a small business set-aside, for a fixed-price indefinite-delivery, indefinite-quantity (ID/IQ) contract to procure cleaning, mowing, and water-testing services in Texas. According to the RFP, the government intended to award a contract to the offeror whose offer was the “most advantageous to the government,” considering “Task Order Price Only” and past performance, with task order pricing weighted more important than price. The RFP also stated that offers would be evaluated “for award purposes by adding the total price for all options to the total price of the base requirement.”

A review of the record revealed that the winning bid’s offer for Task Order 0001 was lower than the protester’s. However, the agency also reviewed the offerors’ unit prices and multiplied those unit prices by the estimated quantities for the life of the contract. The agency found that, with regard to the unit prices, in some instance Dynamix was lower and in some instances, Dyer was lower. However, when estimated for the life of the contract, Dyer had a lower total price. Based on this analysis the agency chose Dyer’s offer over the protester’s offer.

The protester argued that the agency deviated from the RFP and produced a misleading result with its price evaluation. However, GAO explained its well-established standard of review in this type of protest: “The evaluation of an offeror’s proposal is a matter within the agency’s discretion” and will not be reevaluated. Instead, GAO ensures that the agency’s evaluation is “reasonable and consistent with the solicitation’s stated evaluation criteria and applicable procurement statutes and regulations.”

Since the record showed clearly that the agency considered both the Task Order 0001 pricing, as well as unit pricing for the base and option years, and also the overall value of the contract based on expected quantities, the agency’s decision was reasonable and the protest was denied. GAO then explained that, to the extent the protester is arguing that there was confusion between the RFP’s instructions that the agency would review “Task Order 0001 ONLY” but also “add[ ] the total price for all options to the total price of the base requirement,” such an argument is untimely as it was not raised before proposals were submitted.

What’s the takeaway? Protesters should make sure that any and all confusing RFP instructions are raised with the Agency (and maybe even GAO) as early as possible. When the Record shows a reasonable evaluation, there is nothing that can save a protester after award.

Heather Joyce is the attorney responsible for the content of this article.