Contractor Wins Bid Protest for a Second Time Because Agency Doesn’t Document Its Decisionmaking

A government contractor wins its second bid protest in a row at the Court of Federal Claims. In this latest instance, it won because the agency, the Army, failed to document its evaluation and came across to the Court as incompetent and mismanaged. In a very critical opinion against the United States Army Engineering & Support Center, the Court of Federal Claims wrote:

“The United States Court of Appeals for the Federal Circuit has emphasized that “best value” solicitations, such as the one at issue here, afford the contracting officer a great deal of discretion, “so that the relative merit of competing proposals is primarily a matter of administrative discretion[.]” Galen Med. Assoc. Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004). That discretion, however, does not allow the procuring agency the liberty to deviate from the Solicitation’s requirements, ignore applicable Federal Acquisitions Regulations (“FAR”), or ascertain “best value” in a manner that is arbitrary. Nor does that discretion allow the court to overlook the fact that the
Administrative Record does not contain sufficient information on which an agency could even make a rational procurement decision. See Vernon J. Edwards, Complexity and Incompetence: The Revelations of a Failed Acquisition, Nash & Cibinic Report, Dec. 2012, at 186 (describing incompetence and mismanagement in the procurement process). But, that is what happened in this
case.” Ouch!

In this case, the winning bid protest contractor, Linc Government Services, LLC, complained that the Army failed to adequately consider 23 “betterments” as to technical factors in their offer. A “betterment,” in this Solicitation, meant “portions of the accepted proposal which both conform to and exceed the provisions of the [S]olicitation.” In addition, the Solicitation required that the Army recognize as a “betterment” an “offer [that provides] additional value to the [Army].”

The Court correctly recognized that the Army held most of the cards. It seemed inclined to defer to the agency’s judgment regarding the value of each “betterment.” The Army lost because it didn’t show that the Army really considered each one. In many instances there was nothing in the administrative record indicating that the “betterment” was considered at all.

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