Proving that an agency acted improperly in its source selection process can be a difficult task for any protester. In theory, for a best value tradeoff decision, the agency’s decision and the process to come to that decision seems easy: the agency does a tradeoff between cost and non-cost factors, and that which is most advantageous to the government is awarded. How hard could it be? And the decisions handed down by the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) seem to confirm that it isn’t that hard, seeing as many cases challenging a best value decision are denied. This is, in large part, due to the discretion agencies are afforded in their source selection decisions. Whether an agency conducts discussions during the source selection process is one of many procurement factors that is left up to the agency’s discretion. But, every so often, a decision comes along to prove that there are limits to an agency’s discretion, and in this case, the agency’s discretion overstepped its bounds with its price reasonableness decision and the unjustified decision to not perform discussions... Nearly a year after the Agency had filed its notice of corrective action, it once again made awards to the same six offerors. When reviewing the corrective action taken, for almost an entire year, the Agency removed an “inappropriate CPARS evaluation” and stated that “no additional amendments or requests for proposal revisions [were] made in the pursuance of th[e] corrective action.” SLS once again filed a protest with GAO. Due to disputes over document production in the second GAO protest, SLS then filed its protest with the Court of Federal Claims... However, when the agency doesn’t require certified cost or pricing data, as here, “[the] agency ‘shall’ use price analysis” per FAR 15.404-1(a)(2). One way of doing this is comparing prices when adequate competition exists, which is permitted per FAR 15.404-1(b)(1). Because the Agency failed to address the missing price information as part of its corrective action, there was no way for it to evaluate price reasonableness. In response, the Agency claimed that it was impossible to evaluate firm fixed price proposals because of the nature of global contingency construction contracts (See? Here it is again!), and therefore conducted a price reasonable analysis in line with FAR 15.404-1(b), but that argument ultimately failed, with COFC finding that a price reasonableness evaluation cannot happen with no price information at all. Protester: 2; Agency: 0... Read the full article here.