Tuesday, November 12, 2019
Contract Awards based on Best-Value Trade-off Criteria
When a solicitation provides for a best-value trade-off, the source selection official retains discretion to select a higher-priced, but technically higher-rated submission, if doing so is in the Government's best interest and is consistent with the solicitation's stated evaluation and source selection scheme. The source selection official has broad discretion in determining the manner and extent to which he/she will make use of technical, past performance, and cost/price evaluation results, and this judgment is governed only by the tests of rationality and consistency with the stated evaluation criteria. A protester's disagreement with an agency's determinations as to the relative merits of competing proposals, or disagreement with its judgment as to which proposal offers the best value to the agency, does not establish that the source selection decision was unreasonable.
A recent GAO decision illustrates this point. GSA issued a solicitation for janitorial services. The award was to be made on a best-value trade-off basis considering two factors, price and past performance with past performance significantly more important than price. Ultimately, an award was made to Sparkle Janitorial Services whose bid was about a percent higher than the Government estimate and whose past performance rating was excellent. Another bidder, Richen Management LLC protested the award arguing that GSA's best-value trade-off and source selection decision was unreasonable. Richen's bid was significantly less than either the Government estimate or Sparkle's winning bid by 24 percent. However, its past performance rating, which according to the solicitation's evaluation criteria was only rated at satisfactory.
Sparkle had been assigned a past performance rating of excellent based on two reference ratings of excellent and one of very good. In contrast, Richen's past performance rating of satisfactory was based on two reference ratings of satisfactory, one of very good, and one unsatisfactory. The unsatisfactory rating was based on a contract that had been terminated for cause (usually meaning failure to perform).
Richen challenged GSA's best-value trade-off analysis, arguing that GSA failed to justify its decision to select a higher-rated, higher-priced proposal as the best value to the Government. GAO however did not agree and did not sustain the protest, citing the inherent judgmental and discretionary aspects to best-value trade-off procurements. GAO noted that GSA analyzed both price and past performance, and ultimately determined that it was willing to pay a higher price for a higher-rated past performance.
The full GAO decision can be accessed here.