The government erroneously chose a contractor who offered to perform a service for 16% less than a rival. In this case, the reason was that the award decision was significantly flawed – the Agency (1) failed to perform a “best-value tradeoff analysis” as required by the Request for Proposals (RFP); and (2) failed to exercise and document its independent judgment. The case is FirstLine Transportation Security, Inc. v.United States,2011U.S.Claims LEXIS 1945 (September 27, 2011).
The Transportation Security Administration (TSA) uses private passenger screeners at some airports and solicited such services at theKansas CityInternationalAirportinKansas City,Missouri. The contract was for a base term of one year with four one-year options on a “fixed-price” award-fee basis. The RFP specifically stated that the contract award would be made on a “best-value” basis – the offer most advantageous to the government price and other factors considered.
In making the “best-value” analysis, the TSA considered seven factors for each contractor: “compliance,” “management approach,” screening services,” “security training,” “pre-transition and transition ability,” “past performance,” and “price.” The “price” factor was considered the least important.
After ranking the competing offerors – FirstLine Transportation Security, Inc. (“FirstLine”) and Akal Security, Inc. (“Akal”) — the TSA awarded the contract to Akal. This shouldn’t have been a shock – Akal bid a whopping 16% less than FirstLine and its rankings on the seven factors considered by the TSA were pretty good (albeit not as good as FirstLine’s). It was certainly technically competent and was a much better price.
FirstLine filed a procurement protest and won. The Court of Federal Claims agreed with them that the TSA effectively converted a “best-value” basis contract into a “lowest-price technically acceptable” contract. Key to the decision was the fact that the TSA failed to perform the best value tradeoff analysis – it simply reported the seven factor scores and concluded that Akal was the best. Had the TSA documented its analysis – explaining why FirstLine’s superior ratings in some factors offset the lower price by Akal – it may have survived the protest. Of course, had the TSA issued its RFP on a “lowest price technically acceptable basis,” the award would have been proper.
The Court of Federal Claims also dinged the TSA for violating its Source Selection Plan. This plan provided for a Source Selection Evaluation Board to report on the seven factors and make a recommendation, and then for an independent Source Selection Authority within the TSA to make an independent judgment on the award. In this case, if the SSA made an independent judgment she did not justify her decision in the Administrative Record.
The Court ordered that the award to Akal be stopped and that the solicitation be either canceled or amended for a new procurement. The bid protest was successful.
———————–
Albo & Oblon are bid protest attorneys and government contracts lawyers.
