Two Proposals Receiving Identical Adjectival Ratings are Not Automatically Equal in Merit
One might assume that if the top two proposals in a best-value procurement receive the same ratings on all non-price factors, the proposals are obviously equal in technical merit and the award must go to the lower priced proposal. However, this assumption would be incorrect. And, as GAO recently pointed out in CPS Professional Services, LLC, B-409811, B-409811.2, August 13, 2014, source selection officials who make this assumption put their contract awards at risk of being overturned by a bid protest.
The CPS Professional Services, LLC protest involved a solicitation issued by the Department of Homeland Security Immigration and Customs Enforcement (ICE) for school certification support services, to be awarded on a best value trade-off basis (three equal factors: price, past performance and technical approach). ICE received quotes from two firms (CPS and Arc Aspicio), and after evaluating each quotation assigned both firms the same ratings on both non-price factors (Technical Approach: Good; Past Performance: Low Risk). ICE then awarded the contract to Arc Aspicio “because both firms received identical ratings under the non-price factors” and “Arc Aspicio submitted a lower-priced quotation than CPS.”
CPS protested the award, arguing that ICE had failed to fairly consider the relative merits of the vendors’ respective past performance in its award decision. GAO agreed.
GAO noted that even though CPS and Arc Aspicio both received a Low Risk ratings for past performance, the record showed that “there may be differences in the quality of CPS’s and Arc Aspicio’s past performance, at least in terms of relevance….” Yet, at “no point in this record is there any consideration by the TET or the contracting officer of whether the past performance of these vendors is equally relevant or why the two firms’ past performance was equivalent.” And, while the record reflected that the contracting officer (in making the trade-off award decision) compared the two firms’ specific strengths and weaknesses on the technical approach factor, there was “no discussion of the respective merits of the firms’ past performance in the contracting officer’s trade-off analysis.” As a result, GAO sustained CPS’s protest and recommended that ICE reevaluate the firms’ past performance and make a new selection decision.
One of the lessons to be learned from this protest is that two proposals with the same adjectival rating on a non-price factor are not automatically equivalent on that factor. If the contracting officer truly believes that the proposals are equal on that factor, the contracting officer must document this determination based on the the specific content of the competing proposals, and the strengths and weaknesses underlying the adjectival ratings. If the contracting officer fails to adequately document this analysis the agency risks having the award overturned on a bid protest.