Protest challenging the agency’s technical evaluation and creation of the competitive range is denied. The protester challenged weaknesses assigned to its technical proposal, but the court found that the weaknesses were justified because the protester’s proposal was confusing, lacked detail, and was missing required information. The protester also argued that the agency erred by limiting the competitive range to proposals that rated highest under the technical factor. But the court explained an agency has discretion in setting the competitive range. Here, the agency did not abuse its discretion by prioritizing the most important, technical factor in setting the range.
The Army published a solicitation for armor and turret system hardware as well as platform integration kits for military tactical vehicles. Fourteen offerors, including Loc Performance Products, Inc., responded.
After evaluating proposals, the Army found areas of concern with each offeror and determined it would be beneficial to enter into discussions. The Army decided to limit discussions to a competitive range of only those proposals that rated higher than Acceptable under the solicitation’s technical factor. Loc, which was rated Marginal under the technical factor, was not included in the competitive range. Following discussions, the Army awarded contracts to two offerors. Loc (after filing an untimely GAO protest) protested with COFC, challenging the Army’s evaluation of its proposal and its exclusion from the competitive range.
Loc objected to several weaknesses it had received under the technical factor. The court, however, found that the weaknesses were justified. For instance, the Army assigned a significant weakness because Loc did not sufficiently explain how it would ramp up production of platform integration kits. The court noted that Loc’s proposal for this task was unclear. The Army was confused by what Loc proposed and reasonably concluded that Loc failed to provide assurances that it could ramp up production of kits.
Loc also challenged a weakness it received for failing to provide a complete flow diagram of its assembly line. Loc had only provided an example flow diagram that depicted the assembly line for four parts. The court found that reasonable minds could differ on whether the example provided a complete picture of Loc’s assembly line. The Army was not required to assume that Loc’s flow diagram applied to all the parts.
Loc also received a significant weakness for failing to provide an integrated management plan and moderate weaknesses for failing to address things like warranty requirements. The court found these weaknesses were justified by either a lack of detail in Loc’s proposal or gaps in the information Los was required to include.
Aside from the technical weaknesses, Loc contended that the Army erred by only considering the Technical factor in setting the competitive range and not considering other solicitation factors—i.e., past performance and price.
But the court noted that the FAR does not require agencies to perform a tradeoff between price and non-price factors when establishing a competitive range. Additionally, while the FAR authorizes an agency to limit the range to the greatest number of proposals that will permit an efficient competition, it does not specify how the agency must arrive at the number of proposals necessary for efficient competition. Indeed, under COFC caselaw, agencies have broad discretion in setting the competitive range.
Here, the court found that the Army had reasonably decided to prioritize the technical factor in creating the competitive range. The technical factor was the most important factor: it indicated how the offerors would produce for the military vehicles. The Army was not required to include lower-priced offerors in the competitive range at the expense of lowering its expectations for the technical factor.
Loc also challenged the evaluation of one of the awardees, but the court declined to address it. Given that Loc was properly eliminated from the competitive range, it did not have a substantial chance of winning award and thus lacked standing to challenge the evaluation of other proposals.
Loc is represented by Christian B. Nagle, Gregory R. Hallmark, and Amy L. Fuentes. The government is represented by Eric E. Laufgraben, Joseph H. Hunt, Robert E. Kirschman, Jr., and Douglas K. Mickle of the U.S. Department of Justice as well as Robert B. Nelson of the U.S. Army.
