Agency Didn’t Understand the Concept of a “Competitive Range,” But Nonetheless Contended that It Somehow Created a De Facto Competitive Range of One. Did GAO Buy this Argument?

An agency could conceivably establish a competitive range with only one offeror. Indeed, the agency in this case claimed that’s what it had done. But the record contained no evidence of competitive range determination, and the chair of the agency’s technical evaluation team admitted they didn’t even know what a competitive range was. Nevertheless, the agency argued that by only holding discussions with one offeror, it had created a de facto competitive range. In sustaining a protest of the award, GAO rejected the notion of a de facto competitive range, essentially finding that such a concept would be absurd and would eviscerate the FAR requirements government discussions.

Rice Solutions, LLC, GAO B-420475

Background

The Department of Health and Human Services (HHS) issued an RFP seeking registered nurse anesthetist services. Three offeror submitted proposals. Although HHS never formally eliminated any offeror, it only held discussion with one offeror, SOPOR LLC. After receiving a revised proposal from SOPOR, HHS awarded the SOPOR the contract. An unsuccessful offeror, Rice Solutions, protested, alleging that HHS improperly conducted discussion with only one offeror.

Legal Analysis

• Agency Didn’t Find Rice Technically Unacceptable – HHS contended that it only conducted discussions with SOPOR because SOPOR submitted the only acceptable proposal. But GAO noted that it was unclear from the evaluation record whether Rice’s proposal had ever been found unacceptable. Indeed, evaluators had noted that Rice’s proposal was acceptable and that it wasn’t acceptable. Additionally, the SSA never stated that Rice had been excluded from the award decision.
• HHS Didn’t Establish a Competitive Range – HHS contended it didn’t conduct discussions with other offerors because it had established a de facto competitive range of one. GAO reasoned that while an agency has discretion in establishing a competitive range, it must provide some rationale for the range it establishes. Here, there was no record that the agency established a competitie range at all. In fact, the chair of the technical evaluation panel admitted in a declaration that they were not familiar with the term “competitive range” and had only learned what the concept was through the protest.
• GAO Rejected Concept of De Facto Competitive Range –  Even if HHS didn’t formally establish a competitive range, it argued that its discussions with one offeror established a de facto competitive range. GAO rejected the concept of a de facto competitive range, finding it resulted in an absurdity. Any time an agency conducted discussions with only one offeror, it could simply claim it had established a de facto competitive range. This would render the FAR’s requirement to actually establish a competitive range meaningless.

Rice is represented by Derek Knoll. The agency is represented by Giovanna Jean-Baptiste and Terrius Greene of the Department of Health and Human Services. GAO attorneys Emily R. O’Hara and Peter H. Tran participated in the preparation of the decision.