Protest of Exclusion From the Competitive Range

B-204459: Apr 13, 1982

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A firm protested its exclusion from the competitive range under a request for proposals (RFP) issued by the Environmental Protection Agency (EPA) for analyses of toxic programs integration policy issues and for analyses of chemical control options. The protester contended that its highest rated technical proposal was improperly eliminated from the competitive range on the basis of cost, which was secondary to the technical factors under the RFP's. Both RFP's contained the same language concerning the relative weights of technical and cost considerations in the evaluation of proposals. Price was not established as a factor to be evaluated and scored in either RFP. The contracting officer eliminated every offeror except the awardee. EPA argued that the protester's exclusion from the competitive range was justified because, after analyzing the score and technical evaluation narratives, the contracting officer determined that the proposals were technically equal. GAO held that: (1) the principle that price or cost may become determinative where two proposals are essentially equal technically, notwithstanding the fact that in the overall evaluation scheme cost was of less importance than other evaluation criteria, does not justify elimination of the highest technically rated proposal from the competitive range; (2) where a solicitation clearly places primary emphasis on technical factors, the elimination from the competitive range of an offeror who is rated higher technically but who has proposed costs higher than the offeror ranked second technically on the basis that the cost proposal is so out of line that meaningful negotiations are precluded, is consistent with the use of negotiation procedures to obtain the most advantageous contract for the Government; and (3) where the evaluation criteria set forth in a solicitation places greatest emphasis on technical factors, eliminating all but the lowest cost, technically acceptable proposal from the competitive range is inconsistent with criteria which stress technical excellence rather than mere technical acceptability. Accordingly, the protest was sustained.

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