Bid Protest Update: COFC Outlines Source Selection Missteps

A flawed source selection evaluation, combined with a failure of the Source Selection Authority to fully document its trade-off justification, has led the U.S. Court of Federal Claims to issue an injunction against TSA’s contract for security screening services at Kansas City International airport (No. 11-375 C
Filed September 27, 2011). This further delays the contract, which was initially awarded in April.

Following the award to AKAL Security, FirstLine Transportation Security, Inc., (the only other offeror in the competitive range and the incumbent on the contract’s pilot) filed a GAO protest, followed by a COFC protest, alleging that TSA did not adhere to the best value evaluation criteria outlined in the solicitation. Rather, TSA selected the lowest-priced, technically acceptable offeror.

The administrative record shows that, following review by the Source Selection Evaluation Board, neither proposal could be recommended to the SSA for award due to significant weaknesses. So TSA held discussions with each vendor and accepted Final Proposal Revisions. The results: FirstLine was found to have 33 strengths and no weaknesses; AKAL was found to have one strength and one weakness. However, the original adjectival ratings, showing both vendors as equally technically qualified, were not changed.

The price evaluation showed that FirstLine’s price was 16% higher than AKAL’s. While TSA asserts that a best-value tradeoff was conducted, the record contains no details except a statement declaring that the technical merit of FirstLine’s proposal did not warrant the higher price.

In a decision that reads like a FAR Part 15 tutorial, the Court responded:

“… when selecting a low-price technically inferior proposal in a best value procurement where non-price factors are more important than price, it is not sufficient for the government to simply state that a proposal’s technical superiority is not worth the payment of a price premium. Instead, the government must explain specifically why it does not warrant a premium.”

The protestor also pointed to several areas where TSA seemingly disregarded the evaluation scheme set forth in the RFP. The Court chided:

“In essence, the government and intervenor appear to assert that the SSEB and SSA were free to disregard the evaluation scheme of the RFP, as long as their evaluation of the proposals was reasonable. That is not the law.” And “The government must evaluate all proposals only in accordance with the factors and significant subfactors set forth in the RFP. See id. § 15.305(a)… Because the SSEB did not document any analysis of the proposals in accordance with the relative weights assigned to each factor and subfactor, its report does not meet the requirements of FAR 15.305(a).”

Further, the Court ruled that the SSA did not appear to reach an independent award decision based on comparative assessment of the proposals. Rather, it relied on the assessment conducted by the Source Selection Evaluation Board (SSEB). While the SSA contends that an independent assessment did take place, the documentation is limited to the adoption of the SSEB report.

Sympathetic to the time it would take, and the possibility that the contractors involved in the protest would lose their competitive advantage, the Court recommended fixing the flaws and reopening discussions with the contractors in the competitive range rather than conducting a new procurement.

But this recommendation came with a warning:
“Any revisions to the current solicitation, source selection plan and TSA’s procurement processes should be substantive, not superficial.”