The Court of Federal Claims recently considered a best value decision made by a Washington Headquarters Services Contracting Officer for construction management support services. AccelGov, LLC and Slicom JV v. United States, Nos. 23-693C et al (Fed. Cl, July 11, 2024). According to the court, it was a clear-cut case where the CO used circular reasoning in making a best value judgment and selecting for award of an indefinite delivery contract without any explanation of why the selection was made.
AccelGov involved an initial protest of the award, then a challenge to the revised award which required the agency to re-evaluate. The three evaluation factors in the solicitation were technical, past performance and cost, with technical when combined with past performance being “more important” than price. The re-evaluation resulted in two protests as follows:
Slicom protested that its engineer had the required experience and that the awardee had been improperly assigned key personnel strengths for its proposed transition manager. The Court rejected these protest grounds explaining that the agency had not prejudiced the procurement in making its decision.
AccelGov protested that the contracting officer’s tradeoff analysis was conclusory and failed to justify more than a million [redacted] dollars in a premium to the awardee ISI-Markon, as compared to AccelGov’s offered price.
The court’s opinion made it clear that the contracting officer’s tradeoff analysis was “all but circular.” The source selection authority (which was the contracting officer) explained his analysis as follows:
ISI Markon’s proposal has an exceptional approach and understanding of the technical requirements and presents an exceptional approach to manage, staff and ensure successful delivery of each task order to accomplish [the agency’s] mission, which is worth the price premium over Accel-Gov’s proposal … because ISI Markon’s proposal is technically superior and I have substantial confidence in ISI-Markon’s ability to successfully perform the requirements.
The judge tore into this reasoning, noting that it simply says that the price premium is worth it because of its technical superiority, without explaining differences in the two proposals.
The following was the notable point in the opinion:
In other words, merely reciting a proposal’s strengths or referencing its technical superiority is insufficient. In a best value procurement, the government can no more selection without explanation a technically superior proposal at any cost (merely because it is better) than it can select a low-priced technically acceptable proposal (merely because it offers savings). What is required pursuant to applicable FAR provisions is an explanation of why the government has decided to pay more for technical superiority (or why the savings justifies a lower-rated proposal). [See FAR 15.101-1 and FAR 15.308].
The court denied Slicom’s protest but sustained AccelGov’s and remanded the procurement to the agency to conduct a new best value determination.
Takeaway: Source Selection officials (including Contracting Officers) must justify their award selection based on written and documented reasons, and may not justify them based on circular reasoning. Clear cut explanations for the best value determination must be in the record.
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.
Comments