Federal procurements often include a competitive range of offerors seeking the contract award.  The Federal Acquisition Regulation (FAR) competitive range procedure offers the agency an incremental stage in the competition where it can pare down a large pool of offerors into a narrow group consisting of only those proposals with a reasonable chance of receiving the award.

But what qualifications are used to determine the offerors included in the competitive range?  And can you protest your firm’s improper exclusion from a competitive range?

Let’s start with that second question.  Yes.  Your firm is absolutely entitled to protest an agency’s competitive range decision if it was made unfairly or not in accordance with the solicitation requirements.  In fact, competitive range proposals sometimes have a greater window for success.  There is much less heartburn involved for the agency in adding one more qualified offeror to the pool (as opposed to traditional protests that challenge the agency’s final decision and seek to wrestle a contract award away from someone else).

Now, circling back to the first question, FAR 15.306 (Exchanges with offerors after receipt of proposals) defines a competitive range as consisting of “all of the most highly rated proposals.”  The agency evaluates proposals against the criteria included in the solicitation to narrow the field.

In a recent protest, an offeror challenged its exclusion from the competitive range for a contract for base operations and spaceport services to be performed at the John F. Kennedy Space Center and NASA facilities on Cape Canaveral Air Force Station.  In part, the protester challenged the agency’s decision on the basis that its proposal included an acceptable technical approach (i.e., the proposal was not defective and conceivably could have received the contract award).

GAO took the opportunity to emphasize that mere technical compliance does not guarantee inclusion in a competitive range.  Specifically, GAO accepted the agency’s conclusion that the lack of strengths in the protester’s proposal, combined with its high price (as compared to other similar offers), rendered it unlikely to be considered for award, even if some of the proposal’s weaknesses could be addressed in future discussions with the agency.

In other words, the proposal was excluded from the competitive range because there was no reasonable chance it would receive the contract award.

Interestingly, GAO’s decision also addresses the protester’s argument that the agency was required to conduct a best-value tradeoff analysis among all of the evaluation factors when establishing the competitive range.  Again, GAO disagreed with protester.  The focus of a competitive range is on culling down the group of offers to only the most highly rated – not following the procedures included in the solicitation for the ultimate contract award decision.

GAO’s decision should not discourage contractors from pursuing a debriefing after exclusion from the competitive range – or even filing a protest.  The protester’s procedural basis was solid – the agency is accountable for making its competitive range decision in a fair, reasonable, and well-documented manner.  With better facts, a competitive range protest offers a low-risk, high-reward opportunity to get back into the competition for the award.

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