Federal Construction Contracting Lawyer & Attorney : Payne Hackenbracht & Sullivan : Construction Law, Dredging and Claims

In a decision issued on April 20, 2007, but published today because of a protective order, the GAO denied a protest by Olympus Building Services, Inc., B-296741.14; B-296741.15 against the award of a contract to Rowe Contracting Services, Inc., issued by the Defense Intelligence Agency (DIA) for janitorial services at the DIA Analysis Center. Olympus challenged the proposal evaluation and best value determination.

Among other things, Olympus asserted that Rowe’s proposal should not have been rated excellent under the technical factors because it did not include a required security awareness plan.  In this regard, in evaluating Rowe’s initial proposal, the Technical Evaluation Board (TEB) noted that Rowe had not provided a security awareness plan; the agency pointed this out to Rowe as a weakness during discussions.  In response, in its final proposal revision (FPR), Rowe provided a security awareness plan comprised of a short statement explaining, among other things, that Rowe was familiar with current Defense Security Services and DIA Regulations and security manuals, and stating that Rowe would comply with all DIA security policies. The FPR also included copies of several documents, including an Annual Security Awareness Briefing, a Refresher Security Briefing, and a Security Awareness Bulletin (self inspection handbook for contractors). The TEB determined that this information was sufficient to respond to its original concern.  Olympus argued that the information should not have been deemed sufficient because it did not include a narrative explaining how each of the included documents would be utilized during performance.

The GAO concluded that the RFP did not require that the security awareness plan be presented in any particular format or include any particular information; thus, the fact that the plan could have included additional information did not require the agency to find it deficient.  “The plan Rowe presented included information addressing security awareness and, given the absence from the RFP of detailed informational requirements, we think the agency reasonably could determine that this information was sufficient to address its concerns. Olympus’s disagreement with the agency’s conclusion is not sufficient to establish that the evaluation is unreasonable.”

While the outcome of the protest might have been the same for other reasons, we find it to be somewhat inconsistent, based on prior GAO decisions, for the GAO to take the position that instead of providing a security awareness plan, it was sufficient for Rowe to simply furnish a “short statement” explaining that it was familiar with DIA security policies.  A “plan” is usually required to enable a TEB to be certain that an offeror has thought out the implementation of agency policy.  The GAO has frequently found that the mere recitation of compliance with an RFP requirement is not sufficient to demonstrate compliance.  The fact that the TEB was willing to accept a “short statement” instead of a security awareness plan should not have endorsed by the GAO.

• Email This
• Print
• Comments
• Trackbacks

In a decision issued by the Government Accountability Office, S4, Inc., B-299817, August 23, 2007, the disappointed offer protested an award to Croop-LaFrance, Inc., a lower priced offeror, under a Request for Proposals (“RFP”) to procure information technology desktop information services. The RFP specified that award would be based on a “technically acceptable-risk/past performance/price tradeoff,” which the RFP explained as follows:

For those Offerors who are determined to be technically acceptable, tradeoffs will be made between proposal risk, past performance and price. Proposal risk and past performance are of equal importance, and when combined, are considered significantly more important than price.

The agency determined that the ratings of past performance of S4, Inc. and Croop-LaFrance were essentially equal and that it was therefore appropriate that price should be the discriminator in making the source selection.  S4 contended that the agency should have drawn more detailed distinctions in the past performance evaluations and that the agency improperly ignored significant distinctions. This sort of protest is very difficult to win because it calls upon the GAO to substitute its discretion for that of the agency – something that the GAO has consistently refused to do, except where there is no rational basis or the agency’s source selection, or procurements laws or regulations have been clearly violated.

Predictably, the GAO stated that “Determining the relative merits of an offeror’s past performance information is primarily a matter within the contracting agency’s discretion; we will examine an agency’s evaluation only to ensure that it was reasonable and consistent with the solicitation’s evaluation criteria and procurement statutes and regulations.” Here, the RFP did not commit the Air Force to evaluating past performance only in the more selective manner that S4 desires.  Rather, based on the GAO’s review of the record, the finding was made that the Air Force’s approach was consistent with the RFP, and that the overall rating of Croop-LaFrance as “high confidence” under the past performance factor was reasonable.

To the extent that S4 argues that the agency should have drawn more detailed distinctions in the past performance evaluations when an offeror had performed more than five of the critical tasks, the GAO disagreed.  The GAO ruled that “Where, as here, both offerors have relevant past performance, an agency is not required to further differentiate the past performance ratings given each offeror based on a more refined assessment of the relative relevance of the offeror’s prior contracts, beyond the scheme set forth in the RFP.”  Here, as indicated, the RFP specified that offerors with experience in five or more of the seven critical tasks would receive a rating of “very relevant.” As the agency reasonably concluded that Croop-LaFrance and its subcontractor established that they had past performance references to meet this standard, there was no requirement that the agency draw further distinctions.

In restating the GAO’s consistent policy, the decision stated that “Where a protester challenges the selection rationale, we will review whether the award decision was reasonable in light of the RFP evaluation scheme, and whether the selection official adequately documented the basis for the selection. When a selection official has determined that proposals are equal, it means that overall there is no meaningful difference in what the proposals have to offer. It does not mean that the proposals are identical in every respect.” In other words, a protester’s mere disagreement with the agency’s determinations as to the relative merit of competing proposals, and its judgment as to which proposal offers the best value to the agency, does not establish that the evaluation or source selection was unreasonable.

• Email This
• Print
• Comments
• Trackbacks

The Government Accountability Office (“GAO”) posted five protest decisions today and, not surprisingly, each protest was denied. One of those decisions, Metson Marine Services, Inc., B-299705, involved Metson’s protest of the award of a contract to Seaward Services, Inc. under a Request for Proposals (RFP) issued by the Department of the Navy, Military Sealift Command (MSC) to obtain port operation and vessel management services for the Athena high speed research vessel system.  Metson protested that the agency unreasonably concluded that its proposal was technically unacceptable, failed to conduct meaningful discussions with Metson, and conducted an unreasonable evaluation of Seaward’s past performance.

The GAO decided that the agency reasonably determined that the protester’s proposal was technically unacceptable and that it would not conduct further discussions with the protester, where protester’s final revised proposal, submitted after extensive discussions, failed to meet the solicitation’s requirements for a key personnel position. Metson had argued that the agency failed to conduct meaningful discussions.  More specifically, Metson maintained that when Metson’s proposed person was found to not meet the RFP requirements for this key personnel position, the agency was obligated to follow up with further discussions.  Had it done so, the protester asserted, the agency “would have realized that Metson’s proposed person was not only qualified, but exceeded the qualifications of the person Seaward had proposed for the same position.

This decision is not noteworthy because of any groundbreaking legal pronouncements; it simply highlights how difficult it is to overcome the deference that the GAO affords to government agencies.  While acknowledging that “when an agency engages in discussions with an offeror, the discussions must be meaningful,” the GAO nevertheless concluded that an offeror’s creation of a proposal defect which first appears in a proposal revision following discussions does not trigger an obligation to engage in another round of discussions and proposal revisions to advise the offeror of the newly-created deficiency and permit attempted correction. We find ourselves wondering why not?  Isn’t it the purpose of a negotiated procurement to use discussions to correct deficiencies and facilitate the selection of the best value?

In similar deference to agency discretion, the GAO dismissed the protester’s assertion that it was unreasonable for the agency to conclude that its key person failed to meet the solicitation qualification requirements for the position. Metson argued that this individual’s qualifications not only met, but exceeded, the solicitation requirements.  In response the GAO stated that “In reviewing a protest of an agency’s proposal evaluation, it is not our role to reevaluate proposals. Rather, we will consider only whether the evaluation was reasonable and consistent with the terms of the solicitation and applicable procurement statutes and regulations.”

While the agency and the GAO may have ultimately ruled correctly under the particular facts of this case, the GAO’s reluctance to look behind an agency’s decision not to continue or reopen discussions, or not to look behind an agency’s proposal evaluation, means that it is virtually impossible to win a protest where the reasonable exercise of agency discretion is at issue.  In our opinion, the GAO would foster a much more even-handed application of the negotiated procurement source selection procedures if it did not defer so easily to agency discretion.

• Email This
• Print
• Comments
• Trackbacks