Best Value and Lowest Price Technically Acceptable (LPTA) procurements trigger very different bidding obligations for contractors.

As I’ve detailed in this space before, Best Value procurements place limited importance on price.  While cost is (always) a factor, a bidder can overcome a higher price by demonstrating its technical expertise and ability to add value for the agency.  LPTA procurements, on the other hand, place an absolute premium on the ability to perform the work for the lowest possible price.

Decisions from the Government Accountability Office (GAO) and Court of Federal Claims (COFC) tell us that Federal agencies must consider evaluation factors in a manner that is consistent with the framework established in the RFP.  But history and common sense also tell us that Best Value protests can be difficult to win due to the discretion afforded to the agency.

It appears that courts are now more willing to place limits on that discretion.

The Challenge of Best Value Protests

Best Value RFPs instruct the agency to focus on technical merit and  limit price considerations.  Easier said than done.

Best value procurements tend to pull agency selection officials in many directions.  Though price may not be the RFP’s priority, those evaluating proposals and awarding the contract may feel differently for any number of practical reasons (either consciously or otherwise).

The practice of “Technical Leveling” highlights the danger inherent in Best Value Tradeoff evaluations.

A selection official interested in a low price can artificially level the playing field by grading all proposals as equal on technical factors.  IIf the procurement official does not identify any proposal as offering significantly greater technical value to the agency, he or she has the discretion to turn to price as a tiebreaker.

Combating Technical Leveling in Procurement Award Decisions

While defining Technical Leveling is easy, proving it is another matter.

A protester challenging a Best Value award on this basis generally must show two things:  (1) that the agency erroneously failed to consider the technical superiority of its proposal and (2) prejudice as a result of that failure in terms of the ultimate award decision.  That can be a heavy burden if the agency makes an effort to document the purported equality among all proposals.

Happily, it appears that courts are showing increased interest in digging into these type of evaluations.

The COFC recently granted a Best Value Tradeoff protest when the agency first awarded the contract to the lowest-priced (and lowest rated) proposal.  The Court found that the agency went to great lengths to smooth over differences between proposals and create a false impression of equality.  The agency’s Technical Leveling of proposals therefore improperly converted a Best Value procurement into an LPTA.

The Court’s decision also highlights the agency’s improper reliance on the fact that all of the offerors were “capable” of successfully performing the work.  Consideration of whether an offer is “adequate” is a hallmark of LPTA procurements – not Best Value Tradeoff decisions.

Price Still Matters

While we can champion this decision as a win for true Best Value offers, it is also essential to recognize the lingering importance of price in all government procurements.

The COFC’s decision hinges – at least in part – on the relatively small (6%) difference between the lowest- and highest-rated offers.  Had this gap been larger, it would have bolstered the agency’s original award decision.

A higher-priced offeror must always be ready to carry the burden of showing that technical superiority outweighs the proposal’s costs.