If You’re Thinking about Protesting, Don’t Forget to Consider the “Warts” on Your Own Proposal
September 22, 2017
By: Eric Whytsell
Upon learning of a contract award to a competitor, offerors often immediately latch onto the idea of protesting what they are sure must be a flawed decision. After all, how could it be reasonable and consistent with law and the solicitation for the agency to have chosen the awardee over the disappointed bidder? Firms that find themselves in this situation need to find a way to quickly get past their initial disappointment and conduct an objective, unemotional assessment of the likelihood of success based on the relevant facts and law. The decision in the recent Government Accountability Office (GAO) matter of SSI Technology, Inc., B-414204.3 (September 12, 2017) reminds us that such an analysis must consider the putative protester’s proposal as well as what it knows about that of the awardee.
SSI Technology involved a challenge to a Defense Logistics Agency (DLA) award of a purchase order for liquid fuel water separators to Phoenix Trading, Inc. (PTI). Source selection was to be based on an evaluation of price, delivery, and past performance, with the potential for an evaluation preference for quotes/offers of fewer delivery days than the number requested by the Government. SSI quoted a unit price of $305 with delivery within 180 days. PTI’s quote offered a higher unit price ($409) and a significantly longer delivery time (350 days).
After two earlier protests that resulted in corrective action by the agency and another award to PTI, SSI Technology, Inc. (SSI) protested again, arguing in part that the agency’s best value trade-off was flawed. More particularly, SSI claimed that DLA’s best value determination was unreasonable because (i) PTI’s proposed price was 34% more than that of SSI; and (ii) PTI proposed and was awarded a delivery date that was 145 days after the delivery date required by the Government. How, SSI essentially asked, could paying more for slower delivery constitute best value to the Government?
The Agency’s answer was damning--and based in large part on SSI’s own proposal. While it recognized that SSI quoted a lower price and shorter delivery period than PTI, DLA voiced serious concerns about whether SSI could actually meet the delivery times it proposed. This concern was based on SSI’s “very poor past performance history,” which included a Past Performance Information Retrieval System (PPIRS) score of 0 and a record of delivering only 23.8% of its DLA-awarded CLINs by their dues dates in the past year. In contrast, PTI ’s past performance history showed a high degree of timely performance that gave the agency “full confidence” that PTI would “perform in accordance with its quoted delivery time.” In the end, DLA decided it was worth paying more to PTI in order to avoid the risk of untimely deliveries.
The GAO sided with the agency. It first reiterated the broad discretion afforded source selection officials regarding the manner and extent to which they will make use of technical and cost evaluation results--subject only to the tests of rationality and consistency with the evaluation criteria. The GAO then upheld DLA’s best value determination, finding “[t]he protester has not shown that this determination was unreasonable or inconsistent with the stated evaluation criteria.”
SSI’s inability to make that showing rested in large part on the problems with its own proposal. If it had better past performance, the agency may not have been able to justify paying the price differential required by PTI’s proposal. Indeed, it may have awarded to SSI to begin with.
SSI’s experience here highlights the need to base any decision to protest on a frank appraisal of your own proposal--both the good and the bad--and what its strengths and weaknesses say about your realistic chances of ultimately winning. Even if you’re able to win some early battles, as SSI did, focusing solely on the perceived flaws of the awardee’s offer may result in a significant expenditure of time, treasure, and effort with nothing to show for it. Of course, imperfect knowledge about the awardee’s proposal means taking both sides into account will not guaranty your protest decision will be correct. But ignoring what you do know about your own proposal is almost never a good idea.
Eric Whytsell is responsible for the contents of this Article.
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