McNamee Hosea News & Press


Construction Advisor Newsletter, April 2012

Kevin M. Tracy

Proponents of best value procurement argue that the process allows an agency to determine "best value" based on qualitative analysis of a bidder's capabilities in addition to price. Opponents argue that best value procurement can be manipulated to achieve a desired goal based on favoritism or political considerations.

In the Matter of: American Construction Company, Comptroller General File No. B-401493.2, October 16, 2009, the U.S. Government Accountability Office ("GAO") affirmed the denial of a bid protest filed by American Construction Company ("American"). American was the low bidder, but it was not awarded the contract based on the best value evaluation. The solicitation provided that four factors would be considered in the evaluation of the bids: experience, past performance, management, and price. Price was weighted equally to the other three factors combined.

American filed two protests and won the first protest because it was initially excluded from the tradeoff analysis of competing bids due to its overall "marginal" rating on the best value factors. Essentially it was disqualified from consideration. The Army Corps of Engineers ("Corp") determined that American should have been considered despite its overall marginal rating.

In the second protest, the GAO upheld the Corp's marginal rating of American's past performance based on the Corp's consideration of two CCASS reports indicating that American had difficulty meeting project schedules on two prior projects.

American's management rating was also rated as marginal because it did not demonstrate explicitly how the "fish window" was considered and accommodated in the project schedule. The fish window was a period of time where construction of the pier would be limited due to migration of trout and salmon.

The key points to note are that the GAO upheld the Corp's consideration of the CCASS reports in evaluation of the bid. It is imperative that bidders be aware of the information available to the contracting officer and that bidders mitigate the impact of negative information. Also, despite GAO's determination that the schedule did implicitly account for the "fish window" and met the project specifications, because the fish window was not explicitly accounted for in the bid in a either a narrative or a graph, the marginal rating was upheld. When bidding a project using best value procurement, make sure you are aware of and account for all relevant information, and that all details of the solicitation are met thoroughly.