Do agencies follow the rules in contract awards? Make them prove it.

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Do agencies follow the rules in contract awards? Make them prove it. 

For all the flaws in the protest process, one fact remains relatively consistent: if the government can’t justify its award based on the law and the terms of the solicitation, a contractor can win a protest.

Protesting contractor: Grunley Construction Co. Inc., Rockville

Contracting agency: General Services Administration

Protest lesson: Although flawed, our system is the fairest in the world

Decision: Protest sustained in part and denied in part by the Government Accountability Office April 3, 2013

Post-Mortem: The GSA issued a request for proposals for the replacement of certain infrastructure at a building in Washington, DC. The RFP informed potential offerors that a fixed-price contract would be made to the offer that represented the best value. The GSA received offers from Grunley and Clark Construction Group LLC of Bethesda.

Oral presentations were held, both companies were sent three identical questions, and revised proposals were submitted. After evaluation, GSA reopened discussions, informing Grunley that there were significant weaknesses in its price proposal that was 10 percent less than the independent government estimate. In response, Grunley resubmitted a revised proposal increasing its price by about 18 percent, which resulted in its price being more than Clark’s bid. In the end, based on a higher evaluation score and lower price, Clark was awarded the contract.

In its protest Grunley pointed to specific references in its proposal to requirements that GSA claimed were not met. Not only were the requirements provided for, but upon closer review, the GSA had actually assigned a weakness and a strength for the same evaluated requirement. When confronted with this during the course of the protest, the GSA failed to respond. Accordingly, the GAO sustained the protest ground, pointing in its decision to “apparent inconsistency in the record,” as well as “the agency’s failure during the course of this protest to meaningfully respond to the protester’s arguments.” GAO recommended that the agency reevaluate the proposals and make a new selection.

Generally speaking, I am critical of our system because I know it could be better. Politics should never be part of a bid protest and there should be less deference given to source selection officials. But the system does work more often than not, and a contractor should protest if it truly believes that they have been wronged and that the government has not adhered to the terms of the solicitation.