Bid protesting is more art than science. Fair or not, there is often a point when an agency digs in its heels and a contractor simply can’t win. Just ask East West Inc., which after three years and three protests went from the highest rated offer to not even competitive.
Protesting contractor: East West Inc. Falls Church
Contracting Agency: National Institute of Health
Protest issue: Agency persistence on awarding to a particular contractor
Decision: Denied by the Government Accountability Office July 6, 2011 (public decision released June 19, 2013)
Post-Mortem: It is the history of the procurement that is most relevant to the protest. The request for proposals was originally issued in June of 2008 for custodial services at NIH buildings in various locations in Maryland. After receipt of initial proposals the agency established a competitive range. One of the excluded offerors, Arc-Tech Inc of Ashburn, protested. That protest was sustained in 2009 by the GAO which resulted in a new competitive range that included Arc-Tech.
In November of 2009 NIH awarded the contract to Integrity National Corp. Although Integrity’s price was lower by $1.3 million, East West scored a 93 in its technical evaluation compared to Integrity’s 81. The agency also failed to conduct a best value analysis in its award to Integrity. East West protested, alleging that NIH had violated the Procurement Integrity Act by meeting and exchanging information with Integrity staff prior to award of the contract. NIH took corrective action and conducted an investigation, which resulted in that protest being dismissed.
East West again protested and NIH again took corrective action. This time it amended the evaluation criteria and allowed offerors to submit revised proposals. Again the protest was dismissed as a result of the corrective action. In October 2010 four of the original five offerors submitted revised proposals. And here is where it became clear that the NIH had enough of East West. Integrity’s score went from an 81 to a 93, while East West’s went from a 93 to a 54. East West’s proposal was found technically unacceptable and was excluded from the competitive range.
It is difficult to read this case and not believe that the agency was determined to award this contract to Integrity. There is an old saying, the squeaky wheel gets the grease. When it comes to getting something done by the government that often holds true. But there’s another theory as well, that the squeaky wheel often gets replaced and discarded. Even with changes to its proposal, how does an offer go from being the highest rated to technically unacceptable and excluded? The GAO didn’t probe the agency for an answer, opting instead to deny the protest.