Protest challenging agency’s evaluation is denied. The protester alleged the agency failed to evaluate price realism, but the solicitation sought a fixed-price contract and did not contemplate the evaluation of realism. The protester complained that the agency’s method for evaluating proposals turned the acquisition into a lowest-priced, technically acceptable procurement. But GAO found that this argument was merely an untimely challenge to the solicitation’s terms. As to the protester’s other arguments, GAO found there were nine other offerors in line for award ahead of the protester. The protester had failed to challenge the standing of those nine offerors and thus was not an interested party to assert additional protest arguments.
The Defense Logistics Agency (DLA) published an RFP seeking janitorial and personal property management services at a base in Kuwait. DLA issued the RFP under FAR subpart 13.5’s streamlined acquisition procedures. Award was to be made on a tradeoff between past performance and price. The RFP incorporated an “Efficiency Competition” provision, which stated that DLA would first the price of the proposals. Only proposals with the most competitive prices would be evaluated under the past performance factor.
DLA received 25 responses to the RFP, including proposals from Gulf Civilization General Trading & Contracting Company and Asahi General Trading & Contracting Company. Asahi submitted the second lowest price; Gulf had the 12th lowest price. DLA only evaluated the past performance of the two lowest price proposals. DLA selected Asahi for award based on its high past performance ratings. Gulf protested.
Gulf argued that DLA failed to conduct a price realism evaluation required by the RFP. GAO disagreed. The RFP contemplated a fixed-price contract. For fixed-price contracts, an agency is only required to determine whether prices are fair and reasonable. The RFP did not provide for a realism evaluation; it simply stated that price would be evaluated using “price analysis” techniques. The term “price analysis” as used in the FAR relates to reasonableness, not realism.
Gulf objected to DLA’s decision to only evaluate the past performance of the lowest-priced proposals, arguing that this improperly converted the procurement into a de facto lowest-price, technically acceptable acquisition.
But GAO noted that the procurement was conducted under the streamlined acquisition procedures outlined in FAR subpart 13.5 and thus a traditional best value tradeoff, as set forth in FAR part 15, was not required. The RFP explicitly provided that DLA could limit the best value tradeoff to the lowest priced offerors. To the extent, Gulf objected to this, its argument was an untimely challenge to the terms of the solicitation.
Gulf raised other arguments, but GAO declined to hear them, finding that Gulf was not an interested party. When there are intervening offerors who would be line for award even if the protester’s challenges were sustained, the protester’s interest is too remote to qualify as an interested party. In this case, there were nine other offerors ahead of Gulf. GAO reasoned that Gulf had failed to advance any credible protest grounds challenging the standing of those other offerors. As a result, the company had not shown that it was next in line for award and thus was not an interested party in the protest.
Gulf is represented by Gabriel Grillo of Gulf Civilization General Trading & Contracting Company and Fred A. Joshua of Fred A. Joshua P.C. The intervenor, Asahi, is represented by Ahmad Al-Far of Asahi General Trading & Contracting Company. The agency is represented by Robin E. Walters and Michael J. Kerrigan of the Defense Logistics Agency. GAO attorneys Evan D. Wesser and Edward Goldstein participated in the preparation of the decision.
GAO - Gulf Civilization General Trading