It’s Not Within the Agency’s Discretion to Ignore Aspects of a Proposal
January 18, 2013
The Court of Federal Claims granted a preliminary injunction to a government contractor in a bid protest case because the Army failed to properly document its evaluation of the protestor’s proposal. See Linc Gov’t Services, LLC v. United States, No. 12-522 (Fed. Cl. Dec. 28, 2012). The Court was highly critical of the agency, noting that while it had a great deal of discretion in “best value” procurements, “[t]hat discretion … does not allow the procuring agency the liberty to deviate from the Solicitation’s requirements, ignore applicable Federal Acquisitions Regulations [sic] (“FAR”), or ascertain ‘best value’ in a manner that is arbitrary.” The Court further noted that it could not “overlook the fact that the Administrative Record does not contain sufficient information on which an agency could even make a rational procurement decision.”
According to the Court, the crux of the problem was the Army’s failure to consider or properly document its consideration of twenty-three potential “betterments” in the protestor’s technical proposal. The solicitation defined a “betterment” as a portion of a proposal that meets or exceeds the solicitation’s requirements and provides additional value to the Army.
The Court evaluated the protestor’s allegedly overlooked “betterments” and held that the Army acted without a rational basis as to at least seven of them. In evaluating the “betterments,” the Court generally deferred to the Army’s technical evaluation, although there were exceptions. The Court was particularly critical of the Army when there was nothing in the record to indicate that a potential “betterment” was considered at all, positive, negative or otherwise. It was in those instances that the court found the agency acted arbitrarily and without a rational basis. The Court therefore awarded the protestor an injunction and remanded the matter to the agency for “additional investigation or explanation.”
Jeffry Cook is the attorney responsible for the content of this article.