We sat down with a bid protest attorney, Brandon Selinsky of Whitcomb, Selinsky, PC, to discuss three of the most important bid protest decisions of 2019.
The first case involves the selection of a complementary pair of two proposals, while the second case relates to the legality of two award methodologies — the violation of the LPTA methodology and the price/post-performance tradeoff methodology. The third case involves modification in the existing contract, which was not in the scope of the agreement. Hence, a new procurement has been issued.
Blue Origin Florida, LLC, B-417839, 2019
Based on which proposal offers the best value to the government, this case is about solicitation using an award methodology. In which, the agency determined which offer to provide the best value. However, it does not provide an intelligible basis on which offer has proposal evaluated and will be expected to compete.
Solicitation by the Air Force Department for the NSSL Phase 2 Launch Service Procurement. It is a part of a govt policy to sustain: Industrial base and space launch infrastructure, availability of two space launch vehicles which are capable to carrying security payloads to the area, availability of responsive, reliable, and rapid space launches for security space programs.
GAO sustained the protest and agreed on the arguments. Furthermore, it noted that the solicitation should include information to allow equal terms and to compare intelligently. However, the RPFS.’s failed to provide a reasonable basis for award methodology. Furthermore, they are unable to discriminate between comparing proposals and failed to represent the critical areas of importance.
Inserso Corp., B-417791, B-417791.3, 2019
Solicitation for the IT services which includes award to a technically acceptable offer. It was considered to be the best value service on a tradeoff basis between past performance and price, which does not violate the restriction on the use of lowest-priced. Feel free to discuss it with a bid protest attorney.
GAO denied the improperly used lowest-price solicitation of IT services. On the criteria of LPTA award which based on a tradeoff between past performance and price. The Inserso protested that it violates the NDAA for the Fiscal year 2017. Based on LPTA source selection criteria to make the determination. It argued that the RFQ failed to provide for a tradeoff between technical factors and price, and they used technically acceptable award criteria.
Furthermore, Section 813© of 2017 avoided the use of LPTA to the maximum extent. Moreover, it acquisitions the practice for individual services which includes cybersecurity and information technology services.
However, the GAO agreed that the tradeoff between price and past performance did not constitute the use of LPTA, and it does not violate the 2017 NDAA. Furthermore, it is noted that NDAA did not preclude the use of price with the use of past performance as a technical factor. The statue did not define either the term LPTA criteria and the term LPTA process. Furthermore, the parties are unable to provide any controlling definition of the terms.
Leupold Stevens, Inc., B-417796, 2019
A modification in the contract which was beyond the scope. It includes changes that prohibit the deal and consists of an increase in the value of the material. Hence it constituted an illegal award.
GAO sustained a protest which consists of a modification in the agreement for S-VPS. In 2017, Navy issued a solicitation for S-VPS and received seven offers. In the response, Leupold Stevens, Inc. offered a more expensive approach. It includes an etched glass reticle. For those who do not know, the reticle is a crosshair.
On the other hand, Sig Sauer proposed a wire reticle at a low price. Hence, it was awarded the contract worth of $12,077,565.
GAO decision clearly shows that the ability to issue a contract modification is limited for the agencies.