Better Roads

February 2014

Better Roads Digital Magazine

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Better Roads February 2014 29 slightly lower than Drainpipe's proposed price of $147,937. However, the CO determined that Drainpipe's higher past performance assessment justified its higher price and awarded the contract to Drainpipe. IJC filed a bid protest with the Comptroller General. In its protest, IJC challenged the evaluation of its past performance references, as well as the past performance rating for Drainpipe. IJC's had only one past perfor- mance evaluation that was deemed somewhat relevant regarding a contract to install a catchment tank at a facility in Hilo, Hawaii. The contract reference noted several performance issues and stated it "will not use [IJC] for future projects." As a result, the agency evalu- ated IJC's quality of performance on this contract as marginal. IJC admitted "there were issues" with the performance of the prior contract, but denied awareness of the extent of dissatisfaction with its performance. IJC asserted the agency should have permitted IJC the opportunity to respond to this negative past performance review and claimed had it known the kind of reference this custom- er would supply, IJC would not have used this contract as a past performance reference. In addition, IJC asserted the contract should have deemed relevant in- stead of somewhat relevant, be- cause both contracts included the installation of a catchment tank. However, the RFP at issue involved more than just installation of a catchment tank and also included the excavation and backfill of approxi- mately 1,950 linear feet of trench, the installation of water and sewer lines and pressure testing of all lines prior to backfill. Based on these facts, the agency's conclusion that IJC's prior contract was only "somewhat relevant" was not overturned. IJC's other three past performance evaluations that were deemed not relevant concerned contracts for an underground fuel system and the installation of electric, HVAC and lighting. However, none of these contracts involved any plumbing work. As a result, the agency's determination that these contracts were not relevant was upheld. Drainpipe's past performance evaluations were up- held as appropriate, as two involved plumbing contracts that were both deemed relevant with quality ratings of satisfactory. Finally, IJC argued the agency should not spend "more of the taxpayers' [money] than is necessary." However, this argument was found invalid because the RFP provided the award would be based on technical factors as well as cost. The agency's best value determi- nation and award to Drainpipe — with its superior per- formance record and price premium of approximately 7 percent — was found to be reasonable and IJC's protest was denied. The IJC decision highlights criteria for contracts based on a best value determination. The government does not always need to award contracts based on lowest bid. Instead, an evaluation of technical factors other than lowest price is permissible. It is important that contrac- tors understand the mechanism and cri- teria for best value determinations, as this will enable them to submit offers with the best chance of prevailing. InCourt

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