Protests challenging offerors’ elimination from the competitive range are denied. The agency had eliminated both protesters due to deficiencies assigned under technical subfactors. One protester argued that the agency should not have relied on the deficiency as a basis to eliminate its proposal from the competitive range; rather, the agency should have resolved the deficiency later in discussions. But the court found that the purpose of establishing a competitive range is to limit the offerors participating in discussions. Accordingly, it was appropriate for the court to consider deficiencies in the competitive range determination. A second offeror alleged the agency disparately evaluated proposals by assigning a deficiency to its approach but not for a similar approach from an offeror who was included in the competitive range. The court, however, found that the agency rationally assessed substantive differences between the proposals.
The Defense Logistics Agency (DLA) published a solicitation seeking special operations equipment and logistical support. Twenty seven vendors submitting offers, including Quantico Tactical, Inc. and Unifire, Inc. DLA did not select Quantico or Unifire for inclusion in the competitive range. Both companies filed protests with the Court of Federal Claims. The court consolidated the protests. All the parties, including an intervenor-awardee, moved for judgment on the administrative record.
Quantico alleged that the evaluation under the solicitation’s past performance factor was arbitrary. Quantico claimed that out of the other offerors it had the best past performance history and should have been rated higher. Quantico argued that if DLA had recognized the company’s superior past performance, it would have been included in the competitive range.
The court, however, noted that to be included in the competitive range, Quantico had to have a technically acceptable proposal. Regardless of its past performance, DLA had found that Quantico’s proposal was not technically acceptable because the company had received a deficiency under a technical subfactor. Thus, the court reasoned, even if DLA had erred in assessing Quantico’s past performance, the company had not been prejudiced by the error.
Quantico, however, argued that DLA should have not have considered the deficiency in establishing the competitive range. Rather, in a negotiated procurement like this one, deficiencies and weaknesses should be resolved after discussions, which occur after the competitive range determination.
But the court rejected Quantico’s argument. The FAR does not prohibit a contracting officer from usingdeficiencies as a basis for making a competitive range determination. FAR 15.306, which governs discussions, requires that agencies make a competitive range determination prior to discussions, and that the agency only include in the range those offerors whose proposals are the most highly rated. Thus, the FAR contemplates, if not requires, that agencies take weaknesses and deficiencies into account when making the competitive range determination. Indeed, the purpose of a competitive range determination is to winnow the number of offerors with whom discussions. There was nothing irrational about considering deficiencies as part of the competitive range determination.
Unifire contended that it had wrongly received a deficiency under a technical subfactor. DLA assigned Unifire a deficiency because information provided in its proposal did not show how the company would meet a 95% Fill Rate Performance Metric. Unifire claimed its proposal clearly demonstrated the ability meet this metric. And even if its proposal did not contain enough information, Unifire argued that another offeror, which had been included in the competitive range, provided a similar amount of detail. Thus, Unifire, alleged, DLA had disparately evaluated proposals.
The court was unpersuaded. While both companies had explained their ability to meet the metric, Unifire had touted its existing network while the offeror relied on a plan to grow its network. In other words, the other offeror’s proposal was prospective while Unifire’s was retrospective. The court found that the assessment of a deficiency to Unifire was not irrational.
Quantico is represented by Anuj Vohra, Daniel R. Forman, Eric M. Ransom, and Rina M. Gashaw. Unifire is represented by David S. Black, Gregory R. Hallmark, and Amy L. Fuentes. The intervenor, Atlantic Diving Supply, is represented by Paul F. Khoury, John R. Prairie, Kendra P. Norwood, and J. Ryan Frazee. The government is represented by Douglas T. Hoffman, Mariana T. Acevedo, Martin F. Hockey, Jr., Robert E. Kirschman, Jr., and Ethan P. Davis of the Department of Justice.
