• R.D. Lieberman,Consultant

Breaking a Price Tie by Selecting a Higher Quality Offer

In a lowest-priced, technically acceptable acquisition by the Department of State using commercial item and simplified acquisition procedures for four rental vehicles, two vendors submitted technically acceptable quotations at the same price. The Request for Quotations (“RFQ”) included no tie breaking procedures, and the agency considered the quality of the quoted items to determine award among equally low-priced vendors. In a protest, the Government Accountability Office (“GAO”) found that this procedure was reasonable, and denied a protest by the losing vendor. Avis Jordan, B-417248, April 23, 2019.

The RFQ sought to rent vehicles of the current year model or no more than one year old. Both Avis Jordan and Masafat Car Rental provided technically acceptable quotations, each with the same lowest price. (Avis Jordan proposed 2017 Chevrolet Tahoes, while Masafat proposed 2019 Chevrolet Tahoes). The agency selected Masafat, noting that even though there was no tie-breaking procedure in the RFQ, the agency resolved the tie by selecting the newer model vehicles, which clearly were in the best interest of the government.

GAO found the State Department’s selection reasonable and denied Avis’s protest. GAO noted that while using FAR Part 13 (simplified) procedures, contracting officers are instructed to use innovative approaches to the maximum extent practicable. FAR 13.003(h)(4). Furthermore, Avis did not identify any procurement law or regulation or any provision of the RFQ that the agency had violated in its selection.

The GAO noted that in previous solicitations that contained no tie-breaking procedures, it has rejected challenges to a reasonable method chosen by the agency to break a tie. The GAO agreed that obtaining newer vehicles of the same model would be in the agency’s best interest, and found no basis to conclude that the agency’s tie-breaking method was unreasonable.

Takeaway. Contracting Officers should include some type of tie-breaking procedure in a lowest-price technically acceptable procurement, if the quotes are found to be equal in price. That would have eliminated the protest.

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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