As many more acquisitions are competed on a “best value” basis, competitive range decisions have become an accepted means to avoid the time lost and expense incurred in evaluating marginal proposals. Vendors and agencies should understand that if the competitive range decision does not become a subterfuge for limiting discussions to a single offeror, it need not be limited to elimination of facially deficient competitive proposals.
Vendors and agencies should also understand that when a competitive range decision is challenged, reinstatement of a proposal eliminated from the competitive range is not the easy solution, and needs to be carefully considered.
Vendors must affirmatively prove the merits of initial competitive proposals, and run the risk of elimination from the competitive range if they fail to do so. Better Service, B-256498, Jan. 9, 1995. An offeror that cannot prove “within the four corners of its proposal” that it can deliver goods or services on advantageous terms is not entitled to continue in the competition. Laboratory Systems Services, Inc., B-256323, June 10, 1994, 94-1 CPD ¶ 359.
The point of many competitive range decisions is to eliminate proposals that are technically unacceptable as submitted, or else so deficient that even if discussions are convened and an opportunity offered to revise the proposal, the proposal does not have a reasonable chance of being selected for award. Southwest Resources Development, B-244147, Sept. 26, 1991, 91-2 CPD ¶ 295; Logistic Services International, Inc., B-218570, Aug. 15, 1985, 85-2 CPD ¶ 173.
But competitive range decisions may also be based on a comparison and ranking of the technically acceptable initial proposals, and elimination of those technically acceptable initial competitive proposals that have no reasonable chance for award when compared on a relative basis with more highly ranked proposals. Coe-Truman Technologies, Inc., B-257480, Sept. 12, 1994, 94-2 CPD ¶ 136.
Blanket offers of compliance are not adequate substitutes for detailed and complete technical information, and where a proposal fails to include information necessary to establish compliance with mandatory requirements, there is a reasonable basis to find the proposal technically unacceptable. Whittaker Electronic Systems, B-246732, Sept. 10, 1992, 92-2 CPD ¶ 161. General statements of intent to comply with mandatory requirements do not suffice when the solicitation requires an explanation just how the offeror intends to comply. Tri-Services, Inc., B-256196, Sept. 30, 1994, 94-2 CPD ¶ 121. When an agency asks, it is entitled to receive a detailed response with the initial technical proposal sufficient to assure the agency that the offeror understands the requirements, and can comply with them. Telcom Systems Services, Inc. v. Department of the Interior, GSBCA No. 12993-P, Dec. 6, 1994.
Only in those instances where informational deficiencies in an initial proposal can be corrected with clarifications, where the information that is lacking can be characterized as a minor uncertainty or irregularity, is a vendor entitled to repair its proposal. Chant Engineering Co., B-257125, Dec. 19, 1994. There are very few initial proposals that could not be improved through discussions and the opportunity to submit revisions. Agencies need not include within the competitive range every proposal that can be made acceptable through revisions. Even offers that are fully acceptable as initially submitted may have no reasonable chance for award in light of other offers, which, for example, may have many strengths other acceptable offers lack, and could attain only with an altered approach, or through substantial revision and improvement. Samtech Research, Inc. v. Department of Commerce, GSBCA No. 13082-P, Dec. 22, 1994 (“Because other proposals were either superior technically or significantly lower in price, [vendor’s] offer, even with the benefit of discussions, did not have a reasonable chance of being selected for award.”).
Submission of even a fully acceptable initial proposal may not be viewed as “a guaranteed opportunity” to receive discussions on weaknesses and perceived deficiencies, to submit a revised proposal, or to submit a best and final offer. PeopleWorks, Inc., B-257296, Sept. 2, 1994, 94-2 CPD ¶ 89. Agencies may remove from the competitive range fully acceptable initial proposals, and also deficient initial proposals that can be corrected with discussions, when the number of remaining proposals provides adequate competition. Gardiner, Kamya & Associates, P.C., B-258400, Jan. 18, 1995; Pyramid Services, Inc., B-257085, Aug. 23, 1994, 94-2 CPD ¶ 79.
Competitive range decisions are based on the cost/price proposals submitted. A firm that does not offer its best cost/price at the first opportunity always runs the risk of being excluded from further competition. In establishing a competitive range, agencies are not required to predict whether, or the extent to which, offerors will submit cost/price reductions with their best and final offers. American Environmental Services, Inc.,B-257297, Sept. 8, 1994, 94-2 CPD ¶ 97.
Initial competitive proposals that do not affirmatively show compliance with mandatory requirements may be summarily eliminated from the competitive range, if the solicitation clearly designates these mandatory requirements. Hughes Advanced Systems Co., GSBCA No. 9601-P, Aug. 30, 1988, 88-3 BCA ¶ 21,115; see also Federal Acquisition Regulation (FAR) 15.605(e) (“The solicitation shall inform offerors of minimum requirements that apply to particular evaluation factors and subfactors”). Vendors that do not revise their proposals after receiving discussions or clarifications telling them that certain requirements are mandatory requirements may not contest their subsequent elimination from the competitive range by asserting that they should have been retained, that only the technical scoring should have been reduced. Integrated Services Group, Inc. v. Department of the Treasury, GSBCA No. 12982-P, Nov. 23, 1994.
That a technically unacceptable proposal offers a lower proposed price/cost is not a reason for it to be retained within the competitive range. Technically unacceptable proposals cannot be considered for award, no matter how low the proposed price/cost. STS Strategic Technologies & Sciences, Inc., B-257980, Nov. 17, 1994, 94-2 CPD ¶ 194.
Competitive range decisions are peculiarly within agency discretion, and will not be questioned if they are reasonable, follow the announced evaluation factors, and do not preclude full and open competition upon submission of revised proposals. Agencies are required by the Competition in Contracting Act of 1984 to obtain full and open competition by offering vendors adequate opportunities to submit competitive proposals, and by conducting the competition so as to receive several competitive proposals, by that insuring that agencies receive the most advantageous offers.
Agencies may rely on the decisional process to support a competitive range determination only where the result of the competitive range decision as to technically acceptable proposals does not preclude full and open competition. Where one proposal remains within the competitive range after elimination of other technically acceptable proposals, the agency must clearly show that the excluded proposals have no reasonable chance of being selected. Birch & Davis International, Inc. v. Christopher, 4 F.3d 970 (Fed. Cir. 1993).
Just as this article goes to press (on May 1,1995), the Office of Federal Procurement Policy is circulating draft legislation that would expressly allow agencies to issue competitive range decisions limiting discussions by removing fully acceptable initial proposals from the competitive range. This draft legislation allows limiting the competitive range, for the purpose of conducting discussions, to “at least the three highest ranked offerors.”
When competitive range decisions are challenged, they are reviewed on the information submitted, and not on the information offered to support the challenge. Southwest Resources Development, B-244147, Sept. 26, 1991, 91-2 CPD ¶ 295; GTE Government Systems Corp., B-222587, Sept. 9, 1986, 86-2 CPD ¶ 276 (transportable telephone central office switches). The issue in such cases is not the offeror’s ability to successfully accomplish the prospective contract; instead, it is the assessment of the offeror’s ability as it is conveyed in the proposal. International Data Products Corp. v. Department of the Treasury, GSBCA No. 12804-P, June 2, 1994, 94-3 BCA ¶ 26,971.
Agencies are not bound by initial decisions to include or exclude a proposal, and may issue successive competitive range decisions, excluding offers from the competitive range that no longer have a reasonable chance of being selected, ARC Professional Services, Inc. v. General Services Administration, GSBCA No. 12699-P, Mar. 22, 1994, 94-2 BCA ¶ 26,845, or reinstating offers to the competitive range that contain only informational deficiencies, particularly so in those instances where reinstatement will ensure further full and open competition, Aquasis Services, Inc., B-240841, July 26, 1991, 91-2 CPD ¶ 94.
A decision to reinstate a vendor to the competitive range must be balanced against the need to avoid technical leveling, Department of the Navy - Reconsideration, B-250158, May 28, 1993, 93-1 CPD ¶ 422, and the potential benefit of additional competition, i.e., increasing the likelihood that better items, or better prices, will be offered, ATS, Inc., GSBCA No. 9338-P, Jan. 14, 1988, 88-1 BCA ¶ 20,467.
There may be a divergence of opinion about the need to avoid technical leveling when the issue is whether to reinstate a proposal previously eliminated from the competitive range. FAR 15.610(d) defines “technical leveling” as successive rounds of discussions and revisions that enable an offeror to eliminate perceived weaknesses or deficiencies resulting from the offeror’s lack of diligence or competence. In Aquasis Services, GAO held that reinstatement of a proposal to the competitive range was not improper where additional information was all that was required to repair the proposal, and that permitting the offeror to submit additional information was not technical leveling.
Contrary to the GAO position, the GSBCA has held that where a vendor is debriefed after a decision eliminating it from the competitive range, the need to limit discussions to avoid technical leveling must be considered in assessing the likelihood that reinstatement will benefit the competition.
In OAO Corp., GSBCA No. 10186-P, Sept. 29, 1989, 90-1 BCA ¶ 22,332, the GSBCA concluded that nearly all discussions as to a particularly significant evaluation factor would be improper technical leveling, and thus the likelihood that further discussions would lead to an award to the protester, if it were reinstated, appeared negligible. Since reinstating the protester to the competitive range “would have served only to add to the costs, in time and money, which that offeror and the Government incurred in this procurement,” the GSBCA sustained the contracting officer’s competitive range decision.
The interesting point about OAO is that the case arose after the incumbent contractor protested a settlement agreement between the agency and another vendor that the agency had earlier eliminated from the competitive range. This vendor protested its elimination, and the agency agreed to terminate the contract, and reopen the competition. The competitive range decision had been based on a relative comparison of technically acceptable initial proposals with more highly ranked proposals. The agency concluded that the contracting officer’s competitive range decision was improper; the GSBCA held otherwise.
Vendors eliminated under a competitive range decision do not forfeit a stake in the outcome of the acquisition, and are entitled to receive notice of further solicitation amendments, preaward protests, the selection decision, and any postaward protests. For example, if a postaward protest is filed, and granting the protest would negate the reasons for the vendor’s elimination, then the vendor has a sufficient direct economic interest that allows it to intervene and participate in that protest. ATS, Inc. Vendors whose proposals are reinstated to the competition after a complaint about elimination from the competitive range are understood to have assumed an “uphill battle,” and when they do not receive the award, may not seek recovery of proposal preparation costs on grounds that they were misled. Deskin Research Group, Inc., B-254487, Feb. 22, 1994, 94-1 CPD ¶ 134.
It doesn’t make sense to challenge a competitive range decision by submitting documentation that should have been submitted in the first place, since doing so only shows that the competitive range decision was correct. Vendors that insist on reinstatement lose the right to subsequently challenge the ranking of their proposal relative to other, more highly regarded proposals, and assume the risk, along with the agency, that reinstatement and subsequent discussions and opportunities for proposal revisions may be considered prohibited technical leveling.
— Cy Phillips
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