1. ALOPS, B-404811.4; B-404919, June 21, 2011
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Technical Acceptability
General Counsel P.C. Highlight: No matter how competent an offeror may be, the technical evaluation must be based on information included in the firm’s quotation.
ALOPS protests the award of a contract under a request for proposals (RFP) issued by the Department of the Army for the construction of residential concrete huts (“b-huts”).
The RFP contemplated the award of an indefinite‑delivery/indefinite-quantity (ID\IQ) contract to the offeror that submitted the lowest-priced, technically acceptable proposal in response to the RFP’s requirements. The RFP provided that technical proposals would be evaluated for technical approach, past performance and price. Under the technical approach factor, which was to be evaluated on a pass/fail basis, the RFP identified the following six subfactors: (1) mobilization and construction plans; (2) material delivery and installation plans; (3) quality control plans; (4) safety plans; (5) badging plans; and (6) design, drawings and specifications.
The RFP’s statement of work (SOW) required, among other things, a “Precast/Pre-stressed Concrete Institute (PCI) certified plant” and a quality control plan “which details the contractor’s plan to obtain PCI certification.” The SOW also required the contractor to provide “a design and calculations bearing the stamp of a registered professional [structural] engineer, registered [in] one of the United States.” Additionally, the SOW required that “[t]he finished b-hut shall be assembled from pre-cast units capable of being placed within an imaginary box which measures 10 feet by 10 feet by 37 feet for easy shipment to remote areas.”
The agency found ALOPS’s proposal to be technically unacceptable for failing to adequately demonstrate the offeror’s ability to meet the SOW requirements. ALOPS filed this protest. GAO states that in reviewing a protest against the propriety of an evaluation, it is not the agency’s role to independently evaluate proposals and substitute its judgment for that of the contracting activity. Rather, GAO will review an evaluation to ensure that it was reasonable and consistent with the evaluation criteria in the solicitation and applicable procurement statutes and regulations; a protester’s mere disagreement with the evaluation does not show it lacked a reasonable basis.
The RFP required each offeror to submit a sufficiently detailed technical proposal demonstrating how it would meet all of the SOW requirements, and cautioned that the failure to do so would be considered a technical deficiency (for which a rating of “fail” was to be assigned). The RFP’s SOW required a PCI-certified plant as well as a quality control plan detailing how the contractor would obtain the required PCI certification. The record reflects that the ALOPS’s proposal, at best, merely confirmed its intent to supply a PCI-certified plant–it did not provide any detail to explain how ALOPS planned to obtain the required certification, as required by the RFP. In this regard, the protester’s proposal merely states an intention to “submit all the documents needed” for PCI certification. Since ALOPS failed to provide any detail regarding its plan for obtaining PCI certification, as contemplated under the RFP’s quality control plans subfactor, the agency reasonably assigned ALOPS’s proposal a deficiency in this regard, and GAO has no basis to question the reasonableness of the rejection of the protester’s proposal as technically unacceptable.
Similarly, the record reflects that the agency reasonably identified a deficiency in the protester’s proposal for failing to identify a structural engineer registered in the United States. The SOW required the contractor to provide “a design and calculations bearing the stamp of a registered professional [structural] engineer, registered [in] one of the United States.” The only professional identified in the protester’s proposal was a civil engineer registered in Lebanon. Moreover, the technical drawings, which were included in the protester’s proposal, do not bear any professional seals or signature of any kind, much less those of an American-licensed structural engineer. Furthermore, the narrative information in the proposal submitted by ALOPS fails to provide any information as to how the firm planned to comply with the SOW requirement. GAO states that an offeror is responsible for demonstrating affirmatively the merits of its proposal and risks rejection if it fails to do so. No matter how competent an offeror may be, the technical evaluation must be based on information included in the firm’s quotation. The RFP here required the offerors to submit a technical approach demonstrating their ability to meet all of the SOW requirements. Since the protester’s proposal failed to do so, GAO has no basis to question the agency’s rejection of ALOPS’s proposal as technically unacceptable under the terms of the RFP. The protest is denied.
2. MPRI, Division of L-3 Services, Inc.; LINC Government Services, B-402548; B-402548.2; B-402548.3; B-402548.4; B-402548.5; B-402548.6, June 4, 2010
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest sustained.
Keywords: Evaluated Costs
General Counsel P.C. Highlight: An Agency must have a rational basis to make evaluation adjustments to an offerors proposed costs.
MPRI, Division of L-3 Services, Inc. and LINC Government Services (LGS) protest the award of a contract by the Department of the Army, U.S. Army Materiel Command, to DynCorp International, LLC under a request for proposals (RFP), for Combined Security Transition Command-Afghanistan (CSTC-A), Afghanistan Ministry of Defense (MoD), and Afghan National Army (ANA) mentoring and program support.
The solicitation contemplated the award of a cost-plus-fixed-fee contract, with a two month phase-in, a base period of two years, and one option year, for the services of qualified personnel to provide dedicated in-depth mentoring, training, subject matter expertise, and programmatic support to CSTC-A staff and the Afghan MoD for the purpose of assisting the MoD and associated Afghan National Army (ANA) forces in assuming full responsibility for their own security needs. In total, the SOW provided for the contractor to provide 275 staff in five skill levels or categories, including senior mentor (eight staff), mentor (128), subject matter expert (32), senior trainer (30), and trainer (77), each with specified minimum educational and experience qualifications. Award was to be made on a “best value basis” considering four evaluation factors: (1) capability (with subfactors for key personnel, management plan, technical approach, quality control and transition plan); (2) performance risk, under which the offeror’s past performance was to be evaluated; (3) small business participation; and (4) cost.
While MPRI’s proposal initially received an overall good rating under the capability factor, as well as good ratings under the key personnel and management plan subfactors, these ratings were ultimately downgraded to acceptable on the basis of agency concerns arising from MPRI’s proposal of a significant reduction in direct labor rates relative to those under its incumbent contract. Although MPRI in its proposal generally attributed its proposed reduction in compensation to “updating salaries based on the current market conditions,” the Army determined that MPRI had “grossly underestimated” its labor costs such that a “direct labor cost growth of approximately [REDACTED]% would occur” as MPRI was forced to increase its labor compensation to the current levels under its incumbent contract. The downgrading of MPRI’s proposal under the key personnel and management plan subfactors resulted in the overall reduction to acceptable under the overall capability factor. MPRI’s proposal otherwise received an excellent rating under the technical approach subfactor on account of its exhibiting a “clear understanding of the CSTC-A mission” and including a clear description of how MPRI would perform the SOW; a good rating under the quality control subfactor (notwithstanding the lack of a dedicated quality control manager) on account of such strengths as its tailored quality control process measuring individual and program performance, weekly activity reports to CSTC-A allowing rapid resolution of problem areas, and an annual work plan for each employee and section; and a good rating under the transition subfactor.
While LGS’s proposal received a good rating under the management plan subfactor on account of such strengths as the program manager being empowered to make decisions and commit corporate resources, it received only an acceptable rating under the technical approach subfactor as a result of an evaluated failure to adequately describe its process for mentoring Afghan personnel, substituting instead an over-reliance on prior military experience.
Although DynCorp’s evaluated cost ($249.1 million) was significantly higher than MPRI’s ($212.7 million), the source selection authority (SSA) determined that DynCorp’s proposal was “vastly superior” under the capability factor, noting in particular the “inherent risk” in MPRI’s proposed reduction in salaries and the fact that five of its eight senior mentors will serve only as team leaders and not also as mentors to Afghan officials. The SSA determined that these considerations outweighed MPRI’s lower cost. Likewise, the SSA determined that DynCorp’s superiority under the capability factor, including a strong corporate knowledge of and experience in similar mentoring, in contrast to LGS’s over-reliance on its leaders’ military background, and DynCorp’s existing relationship with its subcontractors, offset its higher cost. The agency thus made award to DynCorp, following which MPRI and LGS filed these protests challenging the evaluation.
MPRI challenges the agency’s cost realism analysis, which resulted in an upward adjustment in its proposed labor rates. GAO states that when an agency evaluates proposals for the award of a cost-reimbursement contract, an offeror’s proposed costs are not considered controlling because, regardless of the costs proposed the government is bound to pay all actual, allowable costs. Consequently, an agency must perform a cost realism analysis to determine the extent to which an offeror’s proposed costs represent what the contract should cost, assuming reasonable economy and efficiency. An agency’s cost realism analysis requires the exercise of informed judgment, and GAO will review this judgment only to see that it was reasonable. While a realism analysis need not achieve scientific certainty, the methodology employed must provide some measure of confidence that the agency’s conclusions about the most probable costs under an offeror’s proposal are reasonable and realistic.
The record shows that the agency initially reviewed offerors’ proposed labor rates for discrepant rates by comparing them to a range of rates for each position calculated based on one standard deviation (OSD) from the average of the five offerors’ proposed rates for the position. The agency then further reviewed the rates based on the circumstances of each offeror, adjusting some, but not all, of the rates outside the range, as well as some, but not all, of the rates within the range. As shown by the chart, MPRI’s proposed labor rates for the labor categories were lower than the OSD range the agency considered realistic. Based on its realism analysis, the agency determined that the reduction was not justified and adjusted MPRI’s rates for all five labor categories upward to the rates under MPRI’s current Afghanistan mentoring contract. This actually left three of the five resulting rates higher than the OSD range.
As an initial matter, GAO finds the agency’s rejection of MPRI’s proposed labor rates as unsupported to be reasonable. GAO states that an offeror has the burden of submitting an adequately written proposal, and it runs the risk that its proposal will be evaluated unfavorably when it fails to do so. MPRI’s proposal generally attributed the percentage reduction in its incumbent labor rates to “current market conditions,” but included no information regarding current market conditions. Further, MPRI’s proposed rates not only were significantly lower than its current rates for the same work, but also were significantly lower than the rates under DynCorp’s MSNTC-I contract. Finally, MPRI’s proposed rates were lower than the average of all offerors’ proposed rates for certain labor categories; lower than the OSD range for other labor categories; lower than all of the other proposed rates for the certain labor categories; and lower than some of the other proposed rates. While GAO finds that the agency reasonably rejected MPRI’s proposed labor rates as unrealistic, GAO does agree with MPRI that the extent of the resulting upward adjustment in the rates was unreasonable. In this regard, GAO reviews an agency’s conclusions about the most probable costs under an offeror’s proposal in view of the cost information reasonably available to the agency at the time of its evaluation. In increasing MPRI’s labor rates to the level under its current contract, thereby rejecting any reduction, the agency’s realism evaluation assumed rates for MPRI that were higher than the average proposed rate for each of the labor categories; higher than the OSD range for three of the five labor categories; higher than the rates proposed by any offeror for three of the labor categories; and higher than the rates proposed by three of the other offerors for the remaining two categories. The adjusted rates for MPRI also were higher than the rates for three of the five labor categories under DynCorp’s similar MSNTC-I contract, which rates DynCorp itself proposed to reduce for this procurement. In some instances, the adjustment left MPRI’s rates significantly higher than these other reference points.
The significance of these reference points in determining the realism of MPRI’s evaluated rates is highlighted by testimony at the hearing conducted by GAO in this matter. In this regard, when asked what the most probable labor rates would be for foreign nationals in Afghanistan, the cost analyst responded that “competition generally dictates what a reasonable price is,” that the “market rates” were determined by competition, and that the average of the rates proposed by the five offerors thus represented “a reasonable starting point.” The cost analyst then went on to state that MPRI’s current contract rates did not represent “the market rates.” GAO concludes that the record does not support the magnitude of the upward adjustments to MPRI’s proposed labor rates, and that the cost evaluation therefore was unreasonable.
MPRI also challenges the downgrading of its technical proposal under the capability factor based on the cost evaluation conclusions. Again, the Army determined that MPRI had “grossly underestimated” its labor costs as MPRI was forced to increase its labor compensation to the levels under its current contract, with the result that MPRI would experience “high turnover, a lack of qualified personnel, and/or be forced to work with personnel of lesser quality than those proposed.” GAO agrees that the technical evaluation was flawed. While it may be that any reduction in compensation would lead to some additional turnover, it is reasonable to assume that the degree to which MPRI’s rates were deemed inadequate determined the extent to which its proposal was downgraded under the capability factor. Thus, since GAO has found that the inadequacy of MPRI’s rates was unreasonably exaggerated in the evaluation–as reflected in the excessive increase in MPRI’s proposed rates–GAO also finds that the downgrading of MPRI’s technical proposal based on the same flawed cost evaluation results likewise was unreasonable. Accordingly, GAO concludes that MPRI was prejudiced by the agency’s actions and sustain the protest on this basis.
LGS and MPRI maintain that DynCorp’s proposal should have been evaluated less favorably under the performance risk factor. GAO states that it will review a past performance evaluation to ensure that it was reasonable and consistent with the solicitation’s stated evaluation criteria and applicable statutes and regulations. The evaluation of past performance, by its very nature, is subjective; a protester’s disagreement with the agency’s judgment does not demonstrate that those judgments are unreasonable.
The evaluation of DynCorp’s proposal as offering low performance risk was reasonable. In this regard, the solicitation provided for the agency to “conduct a Performance Risk assessment based on the quality of the offeror’s recent (within the past three years) and relevant past performance as well as proposed major subcontractors, as it relates to the probability of successful accomplishment of the required effort.” Offerors were required to identify a minimum of three and a maximum of five contracts; describe for each how the effort is “similar to the requirements of [the] solicitation,” the objectives achieved, the reasons for any shortcomings, and any corrective action taken to avoid reoccurrence; and furnish a past performance questionnaire (PPQ) “to the Government/commercial contracting activity and Government/commercial technical representative responsible for the past/current contract. DynCorp’s proposal cited five prior contracts and DynCorp’s MNSTC-I contract was viewed by the agency as most relevant to the requirement here; indeed, the contracting agency for the MNSTC-I contract described it as identical to the requirement here. DynCorp’s proposal cited its accomplishments under that contract, and also cited two letters of concern regarding a delay in the contract award, which had resulted DynCorp’s losing 90% of its job candidates and had caused initial problems in staffing the contract effort. Despite the staffing issues, the contracting agency’s PPQ response for this contract characterized DynCorp’s overall performance as excellent or very good under nearly all PPQ evaluation categories; stated that the contract had “low administrative issues” and that the agency was “[v]ery pleased with the management of this contract and its responsiveness to [the government's] changing needs”; and indicated that the agency would recommend DynCorp for other contracts. The Army assigned DynCorp a low performance risk rating based on its finding that DynCorp had performed contracts similar in size, scope and complexity to the requirement here; in particular, that it had trained senior leaders from 11 different ministries and agencies under its MNSTC-I contract; that it has had a “permanent presence in Afghanistan since 2003,” including five years mentoring and training the Afghan police; and that its performance had been rated as either exceptional or very good.
The protesters primarily assert that the agency failed to consider the problems under DynCorp’s contracts, and focus in particular on the agency’s failure to receive a PPQ for the CIVPOL-A contract. The evaluation was unobjectionable. As discussed, the agency was aware that DynCorp had encountered problems under its prior contracts. While DynCorp acknowledged shortcomings in its performance under certain contracts, it also explained the measures taken to address the problems. The PPQs received by the agency confirmed that DynCorp’s acknowledged shortcomings were not viewed as significant by the contracting activities in question, and that DynCorp instead was considered to be a very good or excellent contractor. GAO concludes that there is no basis for questioning DynCorp’s low performance risk rating.
GAO sustains MPRI’s protest on the grounds that the cost and technical evaluations were unreasonable and recommends that the agency reevaluate the proposals using a methodology that reasonably accounts for the likely cost for each offeror to staff its proposed capability approach. In addition, GAO recommends that MPRI be reimbursed the costs of filing and pursuing its protest, including reasonable attorneys’ fees. MPRI’s protest is sustained. LGS’s protest is denied.
3. DynCorp International, LLC, B-403065; B-403065.2, September 17, 2010
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Proposal Revisions
General Counsel P.C. Highlight: Offerors are responsible for following explicit proposal revision instructions.
DynCorp International, LLC protests the award of a contract, under a Department of the Army, Army Materiel Command, request for proposals (RFP), for life cycle support for C-12, RC‑12, and UC-35 aircraft.
The RFP contemplated the award of a primarily fixed-price contract, with a base year and four option years, for life cycle contract support (LCCS)–including maintenance, repair, servicing, modification, parts, material, tooling, equipment and management for 113 C-12, 49 RC-12 and 28 UC-35 aircraft. Award was to be made to the offeror that met the entry gate criterion of possession of, or an acceptable plan to obtain, requisite Federal Aviation Administration (FAA) Repair Station Certificates, and whose proposal represented the “best value” considering four evaluation factors: (1) technical-LCCS (with subfactors for technical approach, depot/propulsion/”over & above” work,[1] engineering approach, business relationships/certifications, and transition); (2) past performance; (3) management; and (4) price.
Based on the initial proposals, and the offerors’ responses to agency errors, omissions and clarifications (EOC) notices to offerors, the Army conducted discussions with DynCorp (the incumbent contractor) and the eventual awardee–culminating in a request for final proposal revisions (FPR).
Although DynCorp’s evaluated price was approximately 6.6% lower than the awardee’s, the agency evaluators reported to the SSA that they were unable to determine whether DynCorp’s price was fair, reasonable, complete, or realistic for the work to be performed as a result of uncertainties arising from: (1) a greater-than-expected reduction–approximately 15% rather than the expected 9%–in DynCorp’s FPR price relative to its initial price; (2) the fact that DynCorp’s pricing spreadsheets included “circular errors,” even after the agency’s concern in this regard was raised during discussions; and (3) a Defense Contract Audit Agency (DCAA) report identifying material weaknesses in DynCorp’s estimating system.
DynCorp challenges the evaluation of its FPR on the basis that several of the assessed disadvantages with respect to its technical-LCCS proposal resulted from the agency’s failure to take into account information that DynCorp furnished in responses to agency clarification or discussion requests, but did not include in its FPR. GAO states that where a protest challenges an agency’s evaluation of proposals, it will review the evaluation record to determine whether the agency’s judgments were reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations.
DynCorp’s initial technical proposal stated that: “Upon Government approval of the maintenance plan, the Site Supervisor/Lead Mechanic takes the actions necessary to arrange and provide facilities, tools, test equipment, parts/material and other support, as required, to execute the maintenance plan.” Since the solicitation did not provide for government approval of the maintenance plan, the Army viewed DynCorp’s approach as inconsistent with the contractor’s responsibility for the development and implementation of maintenance approaches for each aircraft. In response to the agency’s request that DynCorp clarify its intent with respect to the above language, DynCorp responded that its “intent is to ensure that the Government/COR is fully informed about the facilities, tools, test equipment, parts/material, and other support required for the upcoming scheduled and unscheduled maintenance tasks.”
DynCorp asserts that the Army unreasonably failed to consider its EOC response in the evaluation. This argument is without merit. The agency specifically instructed offerors, when it first issued items for negotiation [IFN] at the commencement of discussions, that “[i]t is imperative that your FPR incorporate all changes to the proposal made by responses to the EOCs and these IFNs.” Likewise, when the agency requested FPRs at the conclusion of discussions, it again instructed offerors that “[r]evisions to your proposal as a result of these discussions, and any EOCs or IFNs, shall be clearly marked in . . . changed pages . . . . It is imperative that your FPR incorporate all changes to the proposal made by responses to the EOCs and these IFNs.” Contrary to these explicit instructions, DynCorp failed to incorporate its EOC response into its FPR, with the result that its FPR included its proposal for government approval of the maintenance plan. The Army reasonably determined that this proposal was inconsistent with the PWS.
DynCorp asserts that the Army’s evaluation of its FPR unreasonably failed to consider the prior IFN response to C-2738-IFN and the response to C‑1032-EOC, wherein DynCorp stated that it would revise its proposal to indicate that the annual weight and balance records review would be performed in accordance with AR 95-1, as required by the PWS. This argument is without merit for the same reason as discussed above. That is, the Army repeatedly, explicitly instructed offerors that “[i]t is imperative that your FPR incorporate all changes to the proposal made by responses to the EOCs and these IFNs.” Although DynCorp did change section 1.1.3 of its FPR as proposed, it did not incorporate the proposed change to section 1.1.1 into its FPR. This failure created an inconsistency in the FPR as to DynCorp’s intention to comply with AR 95-1. In light of this inconsistency, the agency reasonably determined that DynCorp had not unequivocally committed itself to meet the AR 95-1 binding certification requirement, and reasonably downgraded the proposal on this basis. Based upon GAO’s review of all of DynCorp’s timely challenges evaluation, it finds no basis for questioning the evaluated superiority of the awardee’s proposal under the (most important) technical‑LCCS factor.
DynCorp challenges the overall evaluation of the awardee’s past performance as good/low risk. In this regard, the RFP required offerors to furnish a description of all relevant Government and/or commercial contracts including prime contracts and major subcontracts received or performed during the past five years. Offerors also were required to provide past performance questionnaires (PPQ) to references for the identified contracts. The RFP provided that the agency would “focus its inquiries on the offeror’s and any major subcontractor’s records of performance as it relates to the solicitation requirements,” including past and current performance records concerning aircraft maintenance and parts supply; compliance with FAA regulations, and safety and airworthiness requirements; ability to perform/develop FAA Supplemental Type Certificates; ability to select, retain, train, support and replace key personnel; timeliness of performance; quality of results; and customer satisfaction, cooperative behavior and Government interface.
The awardee’s proposal identified three relevant contracts, for all of which references provided PPQs. Only one of the three contracts was viewed as indicating a moderate (rather than very low) level of performance risk. In this regard, the past performance information received by the Army indicated that a subcontractor under the awardee’s contract with U.S. Customs & Border Protection (CBP) for maintenance, logistics management and engineering support for 17 different aircraft types, used an inexperienced workforce, resulting in delivery delays, unavailable P-3 aircraft, and cost overruns. However, while the awardee was faulted for its oversight of the subcontractor, and a telephone inquiry by the Army confirmed dissatisfaction with contractor performance, both PPQs received for the contract rated overall quality of performance and schedule performance good, performance management satisfactory, and management of key personnel good (one PPQ) or satisfactory (second PPQ). In addition, the agency received reports of exceptional/excellent or good performance under the awardee’s two other relevant contracts. While, as noted by DynCorp, the poor performance of the awardee’s subcontractor and poor supervision by the awardee under its CBP contract resulted in a moderate performance risk assessment for that contract, that rating did not preclude the agency from finding that the totality of the awardee’s past performance warranted a good/low risk rating. The protest is denied.
4. Northrop Grumman Technical Services, Inc., B-404636.11, June 15, 2011
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Corrective Action
General Counsel P.C. Highlight: Corrective Action following a prior protest must be reasonably related to the areas expressed by GAO as areas of concern, but will not necessarily require a reopening of the competition.
Northrop Grumman Technical Services, Inc. (NGTS) protests the corrective action taken by the Department of the Army, U.S. Army Materiel Command (AMC), in response to protests by NGTS, L-3 Communications Integrated Systems, and Lockheed Martin Corporation (LM), against the Army’s award of a contract to The Boeing Company, under a request for proposals (RFP), for the development and initial production of the Enhanced Medium Altitude Reconnaissance and Surveillance System (EMARSS).
The solicitation provided for award on a “best value” basis considering four evaluation factors: technical, including subfactors for integration approach and aircraft approach; cost/price; performance risk, reflecting an assessment of the offeror’s likelihood of success based on recent and relevant past performance by the offeror and its major subcontractors; and small business participation. Offerors were required to demonstrate in their proposals (with a “complete discussion and analysis”) that their proposed EMARSS systems will meet certain minimum, threshold performance requirements identified in the solicitation Performance Based Specification (PBS), as well as to identify where their proposed systems will exceed the threshold requirements and/or meet the objective requirements. Boeing, NGTS, L-3 and LM submitted proposals in response to the solicitation. After conducting extensive discussions and obtaining revised proposals, the Army determined that Boeing’s proposal and EMARSS system represented the best value. NGTS, L-3 and LM thereupon filed protests challenging the source selection.
The protesters raised numerous challenges to the evaluation of proposals under each of the evaluation criteria. Among the arguments raised were challenges to the agency’s evaluation of the performance of the offerors’ EO/IR sensors as part of their proposed EMARSS systems, including assertions that Boeing’s proposed EMARSS system improperly was determined to be compliant with a number of the PBS threshold requirements. After a hearing was held, GAO conducted an outcome prediction alternative dispute resolution conference in which the cognizant GAO attorney indicated that GAO likely would sustain L-3′s protest against the past performance evaluation. In this regard, the GAO attorney indicated that it appeared that the Army, in evaluating Boeing’s proposal under the performance risk factor, had improperly given Boeing credit for the past performance of a subcontractor that, although critical to Boeing’s proposed effort, nevertheless did not satisfy the prerequisite of being a major subcontractor for consideration in the past performance evaluation. In addition, the GAO attorney expressed concerns about the adequacy of the agency’s evaluation of the performance of the EO/IR sensors as part of the offerors’ proposed EMARSS systems.
In response, the agency advised the parties that, consistent with the provisions of the solicitation governing the scope of the performance risk evaluation, the Army would reevaluate the performance risk of Boeing, without consideration of the past performance of the cited critical, but not major, subcontractor. The agency further advised that the Army would also reexamine the performance validations for all offerors as to the performance of their EO/IR sensors. Finally, the agency advised that after performing the above, the Source Selection Authority would render a new source selection decision.
NGTS challenges the extent of the proposed corrective action. NGTS asserts that the corrective action is unduly limited, and that the agency instead should reopen discussions with all offerors followed by the opportunity to generally revise proposals. GAO states that contracting officers in negotiated procurements have broad discretion to take corrective action where the agency determines that such action is necessary to ensure a fair and impartial competition. As a general matter, the details of a corrective action are within the sound discretion and judgment of the contracting agency. In this regard, an agency’s discretion when taking corrective action extends to a decision on the scope of proposal revisions, and there are circumstances where an agency may reasonably decide to limit the revisions offerors may make to their proposals. GAO generally will not object to the specific corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action.
Here, the Army’s intended corrective action focused not only on the very procurement deficiency (an unreasonable past performance evaluation) that led to GAO’s ADR prediction that L‑3′s protest would be sustained, but also on the concerns expressed by GAO regarding the adequacy of the evaluation of the performance of the EO/IR sensors as part of the offerors’ proposed EMARSS systems. Since the agency’s corrective action responded to the areas of concern identified by GAO, and nothing in NGTS’s protest demonstrates that the agency’s approach was an abuse of discretion, GAO denies NGTS’s protest regarding the scope of the corrective action. The protest is denied.
5. Western State Design, B-404921, June 27, 2011
Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest denied.
Keywords: Technical Evaluation
General Counsel P.C. Highlight: it is not GAO’s role to independently evaluate proposals and substitute its judgment for that of the contracting activity.
Western State Design (WSD) protests the award of a contract under a request for proposals (RFP), issued by the Department of Veterans Affairs (VA), to furnish and install commercial laundry equipment at the VA Medical Center in Buffalo, New York.
The agency issued the solicitation contemplating the award of a fixed-price contract to deliver and install laundry equipment described as a “medium production folder cross folder with large piece stacker machine” within 14 days of contract award. Among other requirements, the offered equipment had to be compatible with the existing laundry equipment, had to be suitable for installation in the available space, and had to include lock-out and tag-out devices. Award was to be made to the offeror whose proposal was determined to be most advantageous to the government, considering four evaluation factors: (1) technical capability; (2) price; (3) quality/past performance; and (4) work plan.
The agency rated WSD’s proposal as marginal overall, with marginal ratings for the technical capability and work plan factors, as well as a very low performance risk rating for the past performance factor. The marginal ratings resulted from WSD’s failure to adequately address several solicitation requirements. As it relates to the protest, the agency found that WSD failed to establish how its equipment would be compatible with the existing Braun laundry equipment.
WSD’s challenge of the agency’s technical evaluation is without merit. GAO states that in reviewing a protest against the propriety of an evaluation, it is not GAO’s role to independently evaluate proposals and substitute its judgment for that of the contracting activity. Rather, it will review an evaluation to ensure that it was reasonable and consistent with the evaluation criteria in the solicitation and applicable procurement statutes and regulations; a protester’s mere disagreement with the evaluation does not show it lacked a reasonable basis.
Here, the underlying record supports the agency’s evaluation. In this regard, under the technical capability factor, the solicitation stated that each proposal would be evaluated as to whether the offered equipment was compatible with the existing Braun laundry equipment. Notwithstanding repeated requests during discussions asking the protester to explain “how [its] equipment is compatible with and will interface with the existing Braun equipment,” WSD failed to demonstrate that this was in fact the case, as determined by the agency’s evaluators. In its comments responding to the agency report on this issue, WSD does not meaningfully rebut the agency’s assessments regarding its failure to satisfy this requirement; rather, the protester simply repeats the general assurance it provided to the agency during discussions that its equipment “would be fully compliant.” GAO states that an offeror is responsible for demonstrating affirmatively the merits of its proposal and risks rejection if it fails to do so. No matter how competent an offeror may be, the technical evaluation must be based on information included in the firm’s quotation. Having failed to demonstrate that its equipment met the agency’s requirements, the agency properly downgraded WSD’s proposal on this basis. The protest is denied.
6. Torres International, LLC, B-404940, May 31, 2010
Link: GAO Opinion
Agency: Department of State
Disposition: Protest denied.
Keywords: Responsibility Determination
General Counsel P.C. Highlight: in making a negative responsibility determination, a contracting officer is vested with a wide degree of discretion and, of necessity, must rely upon his or her business judgment in exercising that discretion.
Torres International, LLC (TI JV), protests the Department of State’s (DOS) determination that TI JV was not responsible to perform the services required under a task order request for proposals (TORFP), issued by DOS for the provision of protective security services in Irbil, Iraq.
DOS awarded multiple indefinite-delivery/indefinite-quantity (ID/IQ) contracts in support of the Worldwide Protective Service (WPS) program. An IDIQ contract was awarded to TI JV, a joint venture consisting of Torres Advanced Enterprise Solutions, LLC (Torres AES), Sallyport Global (Sallyport), and Blue Hackle North America (BHNA). Under the WPS program, all ID/IQ contractors are required to hold top secret facility clearances. According to the agency, all three of the TI JV members would each have to have a top secret facility clearance in order for TI JV to be issued a top secret facility clearance. The award notification advised TI JV that it was responsible for obtaining an interim top secret facility clearance within 60 days of the ID/IQ contract award and a final clearance within 120 days of award. TI JV was also advised that until a top secret facility clearance was issued, it could not perform any work under the ID/IQ contract. DOS issued a cure notice to TI JV concerning its failure to obtain the required facility clearance. TI JV was specifically advised that, as a matter of responsibility, it was ineligible for award of any task orders until it received a final top secret facility clearance. Torres AES responded and advised the agency that it was the majority and senior joint venture member of TI JV and that each of the joint venture members had completed all required steps to obtain clearances. Torres AES indicated that it would “fully absorb” TI JV and immediately request that the Defense Security Service (DSS) provide a top secret facility clearance to TI JV based on Torres AES’ existing facility clearance. Torres AES further stated that Sallyport and BHNA would “remain on the sidelines” while awaiting their clearances and would “return to the [joint venture]” once their facility clearances were granted. DOS considered TI JV no longer to be a responsible party to perform task orders issued under the WPS contract.
The agency issued the subject TORFP for the provision of protective security services in Irbil, Iraq. The TORFP included two mandatory requirements. The first mandatory requirement was that offerors were required to submit evidence of current private security company licenses issued from both the Iraqi and Kurdistani Ministries of Interior. The second mandatory requirement was for offerors to provide evidence of their top secret facility clearances with their proposals. In this regard, the TORFP stated that DOS would not evaluate proposals from offerors that lacked current top secret facility clearances. TI JV filed a timely agency-level protest challenging as unduly restrictive the requirement that offerors possess a Kurdistani license. TI JV submitted a proposal in response to the TORFP and included evidence that it had a top secret facility clearance. DOS denied the agency-level protest and again advised TI JV that it remained ineligible for award of the task order because it did not possess a top secret facility clearance.
TI JV contends that the agency’s negative responsibility determination on the basis that TI JV lacked the required facility clearance was improper. GAO states that in making a negative responsibility determination, a contracting officer is vested with a wide degree of discretion and, of necessity, must rely upon his or her business judgment in exercising that discretion. Although the determination must be factually supported and made in good faith, the ultimate decision appropriately is left to the agency, since it must bear the effects of any difficulties experienced in obtaining the required performance. For these reasons, GAO generally will not question a negative determination of responsibility unless the protester can demonstrate bad faith on the part of the agency or a lack of any reasonable basis for the determination. GAO’s review is based on the information available to the contracting officer at the time the determination was made.
Here, GAO finds that the contracting officer’s negative determination of TI JV’s responsibility was reasonable. While TI JV submitted with its proposal a letter from DSS granting a top secret facility security clearance, TI JV recognizes that the clearance was based on a restructuring of the joint venture that in essence eliminated two of the joint venture members. The contemporaneous record shows that TI JV did not just change the ownership percentages of its joint venture members; it eliminated two of the three joint venture members. As the agency makes clear, it awarded the ID/IQ contract to a joint venture that consisted of three firms; it did not award the contract to an entity that consisted only of Torres AES. The record shows that DOS specifically advised the protester that it did not approve of Torres AES assuming 100% member interest in TI JV. Moreover, the record further shows, and the protester acknowledges, that two of the joint venture members did not have top secret facility clearances 120 days after award of the ID/IQ contract and still did not have top secret facility clearance when the protester supplemented its corrective action plan with the agency after filing this protest. Based on this record, GAO finds reasonable the contracting officer’s judgment that TI JV, as that entity was structured when it received the IDIQ contract, did not possess a top secret facility clearance. Since TI JV did not have the appropriate clearance required by the solicitation, the contracting officer reasonably determined that TI JV was ineligible for award of this task order. The protest is denied.
7. Ohana Industries, Ltd., B-404941, June 27, 2010
Link: GAO Opinion
Agency: Department of the Interior
Disposition: Protest denied.
Keywords: 8(a) sole source awards
General Counsel P.C. Highlight: SBA and contracting agencies have broad discretion in selecting procurements for the 8(a) program. GAO will not consider a protest challenging a decision to procure under the 8(a) program absent a showing of possible bad faith on the part of government officials, or that applicable regulations may have been violated
Ohana Industries, Ltd. protests the decision of the Department of the Interior, Fish and Wildlife Service (FWS) and the Small Business Administration (SBA), to place an FWS requirement for restoration/construction work on the historic Kilauea Lighthouse, Kilauea Point National Wildlife Refuge, Kauai, Hawaii, under SBA’s section 8(a) program for award of a sole-source contract
The requirement is for design/build services for Phase II restoration/construction work on the Kilauea Lighthouse structure, the lightkeepers’s quarters, an oil storage building and landing station. Ohana, a small business concern, competed successfully for the Phase I contract, which was limited to the repair and rehabilitation of the historic lantern of the Kilauea Lighthouse. To address the Phase II requirement, the agency initially planned to proceed with a competitive acquisition among existing design/build indefinite-delivery/indefinite-quantity (ID/IQ) multiple-award task order contract (MATOC) holders. FWS decided to pursue this requirement as a sole-source award under the 8(a) program. By letter to the SBA, FWS offered to contract with the awardee for the lighthouse restoration under the section 8(a) program. FWS considered the Phase I and Phase II work to be significantly different, such that the Phase II work constituted a “new” requirement. When FWS had not received SBA’s acceptance letter within several weeks, the agency decided to award the work as a task order under its MATOC to the same awardee. Ohana protested and FWS subsequently advised GAO that it would terminate the awardee’s task order and instead award a sole-source section 8(a) contract to the awardee for the required restoration work. FWS requested that SBA cancel its original request and submitted a revised letter to SBA, offering to contract with the awardee under the section 8(a) program. By e-mail SBA accepted the requirement into the 8(a) program. In connection with the protest, SBA has advised GAO that an adverse impact analysis was not required because the Phase II work constituted a new, separate and distinct restoration/construction requirement.
Ohana asserts that FWS failed to provide SBA with complete and accurate information as part of its section 8(a) program offering, and that FWS and SBA incorrectly determined that the Phase II work constituted a new requirement. GAO states that section 8(a) of the Small Business Act authorizes SBA to contract with other government agencies and to arrange for the performance of those contracts by awarding subcontracts to socially and economically disadvantaged small businesses. The Act affords SBA and contracting agencies broad discretion in selecting procurements for the 8(a) program; GAO will not consider a protest challenging a decision to procure under the 8(a) program absent a showing of possible bad faith on the part of government officials, or that applicable regulations may have been violated. Under the Act’s implementing regulations, SBA may not accept any procurement into the section 8(a) program if doing so would have an adverse impact on an individual small business, a group of small businesses in a specific geographical location, or other small business programs. However, SBA regulations explicitly provide that an adverse impact determination need not be performed where a “new” requirement is offered to the 8(a) program. As is pertinent here, the regulations specifically note that “[c]onstruction contracts, by their very nature (e.g. the building of a specific structure), are deemed new requirements.”
Here, SBA determined that the Phase II requirement constituted separate and distinct construction services, such that an adverse impact analysis was not required. SBA concluded that Ohana’s Phase I contract was limited to restoration/construction work on the lighthouse lantern, which is separate and distinct from the Phase II work, which involves work on the lighthouse, lightkeeper’s quarters, the oil storage building and the landing station. While Ohana disagrees, arguing that the Phase II work simply is the completion of the lighthouse restoration work currently in progress, its disagreement, without more, does not demonstrate that SBA’s determination was made in bad faith or was otherwise inconsistent with applicable regulations. To the contrary, SBA’s determination was consistent with applicable SBA regulations, inasmuch as those regulations specifically define construction work as “new” work. Consequently, GAO has no basis to object to SBA’s determination that there was no requirement to conduct an adverse impact analysis prior to accepting the new, Phase II requirement under the 8(a) program. The protest is denied.
8. Mission Essential Personnel, LLC, B-404218.2; B-404218.3, June 14, 2011
Link: GAO Opinion
Agency: Defense Intelligence Agency
Disposition: Protest sustained.
Keywords: GSA Schedule Contract Award
General Counsel P.C. Highlight: When an agency conducts a formal competition under the FSS program for award of a task order contract, it will review the agency’s actions to ensure that the evaluation was reasonable and consistent with the terms of the solicitation.
Mission Essential Personnel, LLC (MEP) protests the Defense Intelligence Agency’s (DIA) issuance of an order to Science Applications International Corp. (SAIC) under a request for quotations (RFQ), for translation and other linguistic services for the National Media Exploitation Center.
The RFQ contemplated issuance of an order for a fixed-price level-of-effort labor contract with a one-year base period and four one-year options to the FSS contract holder whose quotation represented the best value to the government. Best value was to be determined based on a consideration of price and several non-price factors, with the non-price factors being given greater importance. The non-price evaluation factors specified in the RFQ were: (1) management plan; (2) quality control plan; (3) transition plan; (4) resumes; (5) past performance risk; (6) small business subcontracting plan; and (7) facility clearance (which was to be rated on a pass/fail basis). The solicitation provided that under the management plan factor, the agency would consider the vendor’s reporting mechanisms; the relevant experience of its proposed management team “in relation to the scope and context of the Statement of Work [(SOW)]“; the proposed continuing education, professional development, and retraining opportunities for employees; and the vendor’s experience in hiring and retaining qualified personnel. Regarding the resumes factor, the RFQ required vendors to submit resumes for certain key personnel.
MEP takes issue with multiple aspects of the agency’s evaluation, arguing, among other things, that the agency failed to evaluate vendors’ quotations under the resumes factor as contemplated by the RFQ. GAO states that when an agency conducts a formal competition under the FSS program for award of a task order contract, it will review the agency’s actions to ensure that the evaluation was reasonable and consistent with the terms of the solicitation.
The solicitation required vendors to submit resumes for several key personnel and provided for evaluation of each resume against the SOW requirements. In addition, the RFQ provided that each resume would receive its own rating, that resumes failing to meet minimum requirements would be rated as unacceptable, and that the agency would determine an overall rating under the resume factor by averaging the rating of each panel member for each resume. The agency concedes that it did not evaluate the resumes in the manner described by the RFQ. Instead, the agency explains that due to an “administrative oversight,” the evaluators were given an incorrect evaluation standard for the resumes factor. That is, rather than being advised of the above standard, the evaluators were instructed simply to verify that the vendors had furnished resumes for the key personnel positions. Applying this instruction, the evaluators essentially reviewed the resumes factor on a pass/fail basis. The fact that the evaluators did not further evaluate vendors’ quotations with respect to the resumes factor is further confirmed by the fact each evaluator worksheet for this factor is completely blank, with no documentation of any evaluation or assignment of relative strengths or weaknesses.
Notwithstanding this clear deviation from the evaluation criteria established by the RFQ, the agency attempts to excuse its admitted error by suggesting that it effectively considered the qualifications of the vendors’ key personnel under the management plan factor, which provided for consideration of the relevant experience of the proposed management team in relation to the SOW. The agency’s analysis conflates two evaluation factors that the RFQ established as separate and distinct from one another, and, in so doing, undermines the significance of the resumes factor. By considering the resumes factor as subsumed under the management plan factor, rather than assigning it the separate adjectival rating and weight provided for in the RFQ, the agency conducted its evaluation in a manner that was contrary to the evaluation scheme expressly established by the RFQ.
Moreover, the single management plan factor standard upon which the agency relies was qualitatively different from the evaluation contemplated under the resumes factor. Specifically, the relevant management plan standard provided for a general assessment of the relevant experience of the vendors’ key personnel “in relation to the scope and context” of the SOW, whereas under the resumes factor, evaluators were specifically to rate resumes “against the requirements in the SOW.” In this regard, the SOW established specific minimum qualification requirements, as well as highly desired skills and proficiencies, which do not necessarily translate to an evaluation based solely on experience. Given the agency’s failure to evaluate vendors’ quotations according to the ground rules established by the RFQ, MEP’s protest of the agency’s evaluation under the resumes factor is sustained.
Posted by Alecia M Schmuhl 
