To satisfy Brooks Act requirements, can a firm that does not meet the minimum solicitation requirements still be considered one of the 3 most highly qualified firms just because they are ranked 3rd, or would it be considered a deliberate violation of the Brooks Act to knowingly slate a firm that does not meet the solicitation requirements?
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Based on my research, I don’t see any statutory or regulatory violations with the Contracting Officer’s position in this scenario. Including a firm with a deficiency on the final selection list doesn’t violate or circumvent the Brooks A&E Act.
The term “most highly qualified” is not defined in either the FAR or the Brooks Act. But, both sources do clearly require at least three of the most highly qualified firms to begin negotiations.
I was able to find a few GAO decisions that, while not identical, indicated the weight given to a KO’s judgment as long as it wasn’t an effort to circumvent the Brooks Act.
Additionally, FAR 36.606(f) speaks of allowing a contractor to submit a final proposal revision. A firm that did not initially meet one of the source selection criteria could rectify that deficiency during negotiations and receive the award.