Protest of Fixed-Price Contract Award

A company protested the District of Columbia's (DC) award of a contract to another firm. The protester's main allegations were that the price of its proposal was misconstrued, the price was not considered in the evaluation of the proposals, the awardee was permitted to begin work on the contract before the contract was properly reviewed and executed by the Bureau of Material Management, and that there was a pattern of bias in favor of the awardee throughout the selection process. GAO has held that, while the content and extent of discussions is normally a judgment for the procuring agency, GAO will review such decisions where the discussions operated to the bias or prejudice of any competitor. The discussions did not afford the awardee an equal opportunity to compete. The awardee was advised in very specific terms as to the deficiencies in its proposal and was provided an opportunity to revise its proposal and remedy those deficiencies. In contrast, the letter received by the protester was not sufficiently specific or informative to apprise the protester of its price deficiencies. The protester, therefore, was not given a fair and reasonable opportunity to clarify its proposal as was the awardee. While it could not be stated with certainty that cost was not considered, the record suggested that cost was given relatively little weight in award consideration. The request for proposals gave no explicit statement concerning the relative weight of cost and technical factors. GAO has held that, where a solicitation does not expressly state the relative weight of cost and technical factors but clearly indicates that both factors will be considered, cost and technical considerations should be given substantially equal weight. The failure of DC to give these two factors equal consideration may have prejudiced the protester. Regarding the protester's third contention, the record indicated that the awardee did begin work on the contract before the proposal was formally approved, but this was due to the fact that DC had requested that the awardee begin work immediately because two deadlines had already been missed. GAO has held that such procedural irregularities do not generally affect the validity of the award. Accordingly, the protest was sustained. However, in view of the fact that the contract had been substantially completed, remedial action was not possible, but GAO did bring the matter to the attention of the proper DC authorities.