Better Roads

February 2014

Better Roads Digital Magazine

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Better Roads February 2014 27 I n a recent government contracting decision — Matter of IJC Corporation (Dec. 31, 2013) — a bid protest about a contract award to a second low- est bidder based on a "best value" determination was denied. The Federal Acquisition Regulations provide the gov- ernment's objective of source selection is to select the proposal that represents the "best value," a term that means the expected outcome of an acquisition that provides the greatest overall benefit in response to the government's requirements. In best value determinations where the government undertakes competitive negotiations with multiple sources, it must disclose its evaluation factors and rank- ings so the basis for source selection is clear. In deter- mining best value, the government can consider techni- cal factors beyond lowest price, including traditional bidder "responsibility" factors such as experience, past performance, schedule, management capability, person- nel qualifications and technical capability. In Matter of IJC Corporation, IJC protested the Department of Agriculture's (agency) contract being awarded to the second lowest bidder, Drainpipe Plumbing and Solar (Drainpipe), based on a best value determina- tion. The agency issued Request for Proposal (RFP) No. AG–9AD6–S–13–0004 for plumbing work at the Laupahoehoe Science and Education Center in Hilo, Hawaii. The contract included the excavation and backfill of approximately 1,950 linear feet of trench, the supply and installation of water lines, two water catchment tanks, sewer lines and the pressure testing of all water lines prior to backfill. The RFP provided for a fixed- price contract based on best value to the Government considering price and past performance, with price be- ing more important. The agency evaluated past performance references based on recency, relevancy and quality. The possible relevancy ratings were relevant, somewhat relevant and not relevant. The possible quality ratings were excep- tional, very good, satisfactory, marginal, unsatisfactory and not applicable. To determine quality of perfor- mance, the government contacted customers from past similar projects and posed questions regarding the bid- der's past performance. In the end, the agency made an overall evaluation of each bidder based on ratings of substantial, satisfactory or marginal confidence. Three offers were received in response to the RFP, including offers from IJC and Drainpipe. The agency evaluated four past performance refer- ences from IJC, finding three as not relevant and one as somewhat relevant with a quality rating of marginal. In contrast, the agency evaluated two of Drainpipe's past performance references for plumbing contracts and evaluated them as relevant and satisfactorily completed. IJC was given an overall assessment of marginal, while Drainpipe received an overall assessment of substantial. IJC's proposed price was $138,353, which was The Cheaper the Better? Government awards contract to second lowest bidder based on 'Best Value' determination InCourt by Brian Morrow, P.E., Esq. Attorney Brian Morrow is a partner in Newmeyer & Dillion LLP and a licensed civil engineer specializing in construction law, incl. road and heavy construction.

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