Consistent With Precedent, FCC Finds Violation of Competitive Bidding Rules Where Price Is Not Primary Factor

In a newly released Order, the FCC upheld a Universal Service Administrative Company finding that a school district had violated the Commission’s competitive bidding rules by failing to weigh price as the primary factor in its vendor selection process.
The Commission found that the district had considered six criteria in its vendor selection process: (1) “functional requirements (representing 25% of the total evaluation weighting);” (2) “implementation services” (25%); (3) “experience and qualifications of firm” (15%); (4) “experience and qualifications of proposed staff” (10%); (5) “price” (20%); and (6) “quality of proposal submission/oral presentations” (5%). In its defense, the district argued that even if it had rescored the criteria so as to weigh price as the primary factor, the same vendor would have been awarded the contract. The Commission disagreed, stating that there was no way to evaluate how the vendor selection process would have turned out had greater weight been assigned to price.
The Commission conceded that in the past it had waived its rules for applicants that had failed to use price as a primary factor, but only in instances in which the applicant had selected the lowest cost bidder. Here, though, the Commission noted that the winning bidder had a higher cost proposal than others. Consequently, the Commission found that in this instance the district in fact had violated the competitive bidding rules by failing to assign the highest weight to price in the competitive bidding process.
If you have any questions, please contact Mark Palchick, Rebecca Jacobs or any member of the firm’s Communications Law Group.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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