Offerors in best-value procurements are generally accustomed to a review of their complete proposals during the evaluation process.  The recent Government Accountability Office (GAO) decision in The COGAR Group, Ltd., B-413004 (July 22, 2016) highlights the ability of agencies to blend lowest-price technically-acceptable (LPTA) procurement principles into best-value procurements and thereby limit the scope of proposal evaluations.

The COGAR Group timely submitted a proposal in response to a Department of Homeland Security (DHS) solicitation seeking to award an indefinite-delivery/indefinite-quantity contract under FAR Part 12 for professional security services.  This procurement was structured as a best-value competition, but the solicitation also advised that the agency might not evaluate all technical proposals, and instead the agency might limit the competition to those proposals that were “most competitive” on price.  After receiving 19 proposals, DHS considered the mean ($42,501,995) and median ($42,752,035.66) proposal prices, and concluded that only proposals priced under $40,500,000 would proceed to technical evaluations and the ultimate best-value trade-off.

The COGAR Group’s price of $40,531,635 came in just over the threshold, excluding the company from the technical evaluations.  By comparison, the awardee’s price of $40,399,510 came in just under the threshold.  The COGAR Group protested, arguing that there was a difference of only $132,125 (0.3%) between the two offerors, and therefore it was impossible to assess which offeror presented the best value to the Government without a technical evaluation.

GAO disagreed, holding that the efficient competition provision of the solicitation put offerors on notice of this evaluation scheme and that DHS acted reasonably in determining “that any possible technical advantage of an unevaluated, higher-priced proposal would not warrant an additional price premium over a lower-priced proposal that had been assigned the highest possible technical rating.”  Although not referenced in the decision, the GAO’s decision appears consistent with a literal reading of FAR 15.306(c)(2), which permits “limit[ing] the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals.”

GAO reached this conclusion despite arguments from the protestor that its proposal could also have received the highest possible technical rating and been a stronger technical solution when looking deeper than the overall adjectival rating.  It is theoretically possible that the protestor’s technical solution offered technical discriminators worth a 0.3% price premium. Instead, GAO agreed with DHS that it was not obligated to conduct that technical evaluation.

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Photo of Sandy Hoe Sandy Hoe

Sandy Hoe has practiced government contracts law for more than 45 years.  His expertise includes issues of contract formation, negotiation of subcontracts, bid protests, the structuring of complex private financing of government contracts, preparation of complex claims, and the resolution of post-award contract…

Sandy Hoe has practiced government contracts law for more than 45 years.  His expertise includes issues of contract formation, negotiation of subcontracts, bid protests, the structuring of complex private financing of government contracts, preparation of complex claims, and the resolution of post-award contract disputes through litigation or alternative dispute resolution.  His clients include major companies in the defense, telecommunications, information technology, financial, construction, and health care industries.

For several years, Sandy also practiced telecommunications regulatory law, appearing before numerous state public utility commissions in hearings to open the local exchange markets for new entrants under the Telecommunications Act of 1996.

For many years, he has been active in the Public Contract Law Section of the American Bar Association, where he was an author of the section’s original publication of “Subcontract Terms and Conditions.”  From 1999 to 2011, Sandy co-chaired the Section’s committee on Privatization, Outsourcing and Financing Transactions and from 2005 to 2008 served on the Section Council.  Prior to his service in the ABA, for six years he was on the Steering Committee of the Section on Government Contracts and Litigation of the District of Columbia Bar, including three years as co-chair.

Photo of Nooree Lee Nooree Lee

Nooree advises government contractors and financial investors regarding the regulatory aspects of corporate transactions and restructurings. His experience includes preparing businesses for sale, negotiating deal documents, coordinating large-scale diligence processes, and navigating pre- and post-closing regulatory approvals and integration. He has advised on…

Nooree advises government contractors and financial investors regarding the regulatory aspects of corporate transactions and restructurings. His experience includes preparing businesses for sale, negotiating deal documents, coordinating large-scale diligence processes, and navigating pre- and post-closing regulatory approvals and integration. He has advised on 35+ M&A deals involving government contractors totaling over $30 billion in combined value. This includes Veritas Capital’s acquisition of Cubic Corp. for $2.8 billion; the acquisition of Perspecta Inc. by Veritas Capital portfolio company Peraton for $7.1 billion; and Cameco Corporation’s strategic partnership with Brookfield Renewable Partners to acquire Westinghouse Electric Company for $7.8+ billion.

Nooree also counsels clients navigating the Foreign Military Sales (FMS) program and Foreign Military Financing (FMF) arrangements. Nooree has advised both U.S. and ex-U.S. companies in connection with defense sales to numerous foreign defense ministries, including those of Australia, Israel, Singapore, South Korea, and Taiwan.

Over the past several years, Nooree’s practice has expanded to include advising on the intersection of government procurement and artificial intelligence. Nooree counsels clients on the negotiation of AI-focused procurement and non-procurement agreements with the U.S. government and the rollout of procurement regulations and policy stemming from the Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence.

Nooree maintains an active pro bono practice focusing on appeals of denied industrial security clearance applications and public housing and housing discrimination matters. In addition to his work within the firm, Nooree is an active member of the American Bar Association’s Section of Public Contract Law and has served on the Section Council and the Section’s Diversity Committee. He also served as the firm’s Fellow for the Leadership Council on Legal Diversity program in 2023.