Federal Construction Contracting Blog : Federal Construction Contracting Law Firm : Cohen Seglias Pallas Greenhall & Furman PC : Construction Law, Dredging and Claims

By: Michael H. Payne

A protest that challenges the source selection decision on a negotiated, best value, procurement is not easy to win. Numerous decisions of the GAO and the United States Court of Federal Claims have held that procurement officials are entitled to substantial deference. In a recent decision by the Court of Federal Claims, however, the Court stated that “such deference is not unlimited.” See Firstline Transportation Security, Inc. v. United States dated September 27, 2011. While the protest did not involve a construction project, and dealt with a Department of Homeland Security contract for airport screening services, the Court’s decision is certainly applicable to procurements for construction.

The Plaintiff argued that the Source Selection Evaluation Board (“SSEB”) failed to conduct a proper best-value analysis and actually awarded the contract on a lowest-price, technically acceptable basis. That, of course, was improper because the government advertised that there would be a best-value tradeoff that would weigh all of the evaluation factors and price. While a number of protesters have alleged that the Government ignored the advertised evaluation factors and simply found a way to award to the lowest price, it is refreshing to know that, in this case, the Court agreed that the facts supported the protester’s contention.

The Court’s decision is quite lengthy (79 pages) and we will not discuss it in detail, but a copy is linked to this article and we recommend that you give it a quick review. In essence, the Court found that that the best-value analysis performed by the SSEB was both irrational and inconsistent with the evaluation scheme set forth in the RFP. In criticizing the agency, the Court stated that the SSEB failed to account for the significant differences between the competing proposals with respect to technical quality; and, that in selecting a higher-priced, technically superior proposal for award, an agency must explain and document why the technical merits of that proposal warrant its higher price. The Court stated:

[T]he agency is compelled by the FAR to document its
reasons for choosing the higher-priced offer. Conclusory
statements, devoid of any substantive content, have been
held to fall short of this requirement, threatening to turn
the tradeoff process into an empty exercise. Indeed, apart
from the regulations, generalized statements that fail to
reveal the agency’s tradeoff calculus deprive this court of
any basis upon which to review the award decisions.

The finding regarding lack of documentations is particularly welcome because we see so many cases where the GAO and the Court accept very sparse documentation without putting the agency to the test of fully explaining, and supporting, its source selection rationale.

The decision in this case is noteworthy because it holds out the hope that where the facts support a protester’s allegations, the Court will not simply defer to the discretion of the agency. The Source Selection Authority (“SSA”) in this case did not perform an independent evaluation and assessment of competing proposals which, of course, explains why there was no documentation of any such assessment. The Court found this to be particularly egregious and emphasized that the “SSA’s documentation is limited to her adoption of the SSEB report and her otherwise unsupported statement that the intervenor’s proposal represents the best value to the government.” The more that federal agencies are required to document and fully explain the basis for their procurement decisions, the more likely it will be that procurement decisions will be made fairly and impartially.

Michael H. Payne is the Chairman of the firm's Federal Practice Group and, together with other experienced members of the group, frequently advises contractors on federal contracting matters, including teaming arrangements, negotiated procurements, bid protests, claims, and appeals.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

By: Edward T. DeLisle

For those who regularly read our blog, you know that we have followed the government’s recent concern about fraud and abuse in the federal procurement process.  The GAO has issued reports that recite such abuse relative to the 8(a), HUBZone and SDVOSB programs.  As those reports indicate, companies have been awarded set-aside contracts through those programs, but were not qualified to receive them.  In certain circumstances, the apparent fraud was so blatant that the hubris, which certainly existed to think such abuses would go unnoticed, puts Charlie Sheen to shame.  Yet, as the GAO reports state, even when the abuses were uncovered, many of these contractors continued to receive government awards.  It appears that some contractors performing work overseas in places like Iraq and Afghanistan may also be receiving awards that they do not deserve.

As reported by Govexec.com, government agencies responsible for overseas contracts are not properly recording past performance history in the CPAR and PPIR electronic databases.  The biggest offenders appear to be the State Department, the Department of Defense and the U.S. Agency for International Development (USAID).  Based upon information supplied to the Commission on Wartime Contracting, congressionally mandated to investigate overseas contracting activities, these agencies have failed to properly report past performance history in up to 90% of the contingency contracts they have issued.  While the failure to report this information is problematic for many reasons, it certainly exposes the government to contractors who are less than ideal for important government contracts.  This is especially an issue as it relates to contractors in line for suspension or debarment.  As former Connecticut Congressman Christopher Shays, who is the chairman of the Commission, stated: “[I]f suspensions and debarments are impeded by bureaucratic decisions or inertia, then companies that have committed fraud may continue receiving taxpayer funds.  In either case, untrustworthy contractors can continue profiting from government work, responsible businesses may be denied opportunities, and costs to taxpayers can climb.”

Over the years, the government has increasingly relied upon “best value” procurement to let contracts.  Past performance is almost always an important factor in determining “best value.” In fact, in most cases, it is the most important factor.  If federal agencies intend to continue issuing contracts in this fashion, a practice that is highly questionable for the purchase of certain services, such as construction, then they must make it a point to create a system that allows those deserving of awards to receive them. In the case of small business set aside contracts, the government has started to slowly move in this direction.  The VA, for example, is now vetting those contractors on its on-line SDVOSB registry to verify eligibility.  If this function is performed correctly, it will greatly enhance the probability that contracts will be let to those who deserve them. With respect to past performance history, there is a system in place.  Federal agencies simply need to use it.  Hopefully, the findings exposed by the Commission on Wartime Contracting make this a reality.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Join the Federal Construction Group of Cohen, Seglias as it presents, "Unraveling the Mysteries of Federal Construction Contracting," at two different locations.

Dates/Locations:
March 29, 2011 - Hyatt Regency Savannah, GA
March 31, 2011 - Hyatt Regency Grand Cypress Orlando, FL

Time:
8:00a.m.-1:00p.m.

Cost:
$195.00 per person and $95 for each additional person from the same company.

Attendees will learn about the following topics:

• Understanding the FAR and how a Federal construction contract works
• The RFP procurement process
• Preparing winning proposals on “best value” solicitations
• Understanding the IDIQ/MATOC process
• How to successfully team on Federal projects
• Knowing when, and whether, to file a bid protest
• Negotiating contract modifications
• Maintaining proper project documentation
• Obtaining prompt payment
• Preparing and submitting Requests for Equitable Adjustment and Claims
• Protecting your rights through the dispute resolution process

Regardless of your experience level, this seminar will help you understand these key concepts and develop strategies for both obtaining federal contracts and profiting from them.

Please click here for complete seminar details and registration form.  For questions, please contact Rachel McNally at (215) 564-1700 or rmcnally@cohenseglias.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

By: Michael H. Payne & Elise M. Carlin

Each year, a significant number of bid protests filed at the GAO are the result of inadequate discussions. Recently, the GAO released two decisions which reiterated the importance of holding meaningful discussions that do not mislead offerors during negotiated procurements.

The purpose of holding discussions in negotiated procurements is to maximize the best value to the government. Discussions are held to give offerors in the competitive range an opportunity to revise their bids to make them more competitive. The Federal Acquisition Regulation (the "FAR") defines discussions and in what context they occur with an offeror:

Negotiations are exchanges, in either a competitive or sole source environment, between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal. These negotiations may include bargaining. Bargaining includes persuasion, alteration of assumptions and positions, give-and-take, and may apply to price, schedule, technical requirements, type of contract, or other terms of a proposed contract. When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions.

Requirements of Discussions

It is well established in federal procurement law that discussions between the contracting officer of an agency and an offeror must be meaningful. Once discussions have been opened, the FAR dictates that an agency "shall...indicate to, or discuss with, each offeror still being considered for award, significant weakness, deficiencies, and other aspects of its proposal...that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal's potential for award." In order to be meaningful, a discussion must generally lead an offeror into specific areas of their proposal which require modification. Additionally, discussions should be as specific as practical considerations permit, and give offerors a reasonable opportunity to address any potential weaknesses or deficiencies in its proposal which could impact the offeror's competitiveness.

Limitations on Discussions

While discussions must be meaningful, they must also not be misleading. Additionally, they must not favor one offeror over another. During discussions, the contracting officer cannot divulge one offeror's technical solution to another, including any unique technology or innovative and unique uses of commercial items, or any other information that would compromise an offeror's intellectual property. Additionally, any pricing information cannot be revealed without that offeror's permission. In terms of pricing information however, the government may inform an offeror that its price is considered too high or too low and explain how that conclusion was reached. It is also within the government's discretion to inform all offerors if there is a particular price that it has determined to be reasonable based on price analysis, market research or other methods. The government may not disclose the names of any individuals who have provided reference information about an offerors past performance. Lastly, during discussions, the government may not knowingly provide source selection information in violation of the provisions of the FAR that govern procurement integrity, or the savings provisions of the U.S. Code pertaining to Restrictions on disclosing and obtaining contractor bid or proposal information or source selection information. Once discussions have concluded, each offeror must have an opportunity to submit a final proposal revision by a common deadline.
 

Ewing Construction Co., Inc. Decision

On April 26, 2010, the GAO released the decision Ewing Construction Co., Inc., B-401887.3, B-401887.4. Ewing Construction Co., Inc. ("Ewing") protested the award of a contract to Overland Corp. by the Navy for the design and construction of a rotor blade facility at the Corpus Christi Army Depot, Naval Air Station, located in Corpus Christi, Texas. Ewing argued that the Navy failed to conduct meaningful discussions and reasonably evaluate proposals. The GAO sustained the protest because of the Navy's failure to conduct meaningful discussions, but did not discuss whether or not proposals were reasonably evaluated since it recommended that discussions be reopened, meaningful discussions be conducted and that a new source selection be made, if appropriate.

In this case, the Navy held discussions as a corrective action to an initial protest raised by Ewing. After the corrective discussions, the Navy reevaluated the proposals. During the reevaluation, the agency determined that its concerns over Ewing's proposal were more serious than before-a deficiency, rather than a significant weakness. However, the Navy elected not to reopen discussions with the offerors, as it should have, and Ewing was never notified of its deficiency, or given an opportunity to amend its proposal to address the problem. A significant weakness would have resulted in the downgrading of its proposal, but a deficiency made it ineligible for award. Because this concern, if it remained unaddressed, would render Ewing ineligible for award, the GAO recommended that the Navy reopen discussions. Additionally, if after the next round of corrected discussions, the Navy chooses a contractor other than Overland, they are to terminate the contract for convenience and award the contract to the appropriate offeror. Ewing was awarded the costs of filing and pursuing the protest, including attorneys' fees.

AMEC Earth & Environmental, Inc. Decision

On December 22, 2009, the GAO released the decision AMEC Earth & Environmental, Inc., B-401961, B-401961.2. In its protest, AMEC Earth & Environmental, Inc. ("AMEC") challenged the meaningfulness of discussions conducted by the U.S. Coast Guard regarding one of up to five projects that were part of a request for proposals for design-build and construction services for the Department of Homeland Security. Particularly at issue were the discussions regarding AMEC's selection of a particular software program, and AMEC's reasonable, yet inaccurate and uncorrected, assumption that the project site was a wetlands area.

During discussions, AMEC was only asked to address specific questions regarding its use of a particular software program. Due to the nature of the questions, AMEC could not have reasonably understood the true nature of the agency's concern with their use of the software. Because of this, the GAO determined that the discussions were misleading. "An agency may not mislead an offeror - through the framing of a discussion question or a response to a question - into responding in a manner that does not address the agency's concerns, or misinform the offeror concerning a problem with its proposal or about the government's requirements." The agency responded by saying that the use of the software was not considered unacceptable, nor was the weakness considered "significant," and that a determination by them that the use of the software was a weakness would have been tantamount to imposing an undisclosed requirement.

The GAO ruled that while it is true that the FAR only requires agencies to address "significant" weaknesses and deficiencies during discussions, the record revealed that the agency went well beyond the minimal requirements in its discussions with the other eight firms in the competition. In fact, in its discussions with the other offerors, the agency addressed nearly every weakness, almost verbatim, regardless of whether or not they were "significant." Given the requirement of the FAR that the agency shall not engage in exchanges that "favor one offeror or another," it was incumbent upon the agency to hold broad discussions with all offerors equally. The GAO also found the agency's concerns about directing AMEC toward a particular technical approach regarding its use of software to be misplaced. Had the agency simply identified its particular concerns with the use of the software to it, AMEC would have been allowed to make a decision based on a clear understanding of the agency's concerns regarding its technical proposal.

In its proposal, AMEC indicated to the government that it reasonably understood that the project would take place in a wetlands area. AMEC's decision was based on research of publicly available information and it was the only offeror who identified the project site as such. The agency did not consider this designation regarding the project site in its evaluation of AMEC's proposal. Since AMEC was the only offeror to make this conclusion based on publicly available information, the agency was obligated to clarify the agency's understanding of the project site to AMEC. In response, the agency relied on a report that was not publicly available which indicated that the state of New Jersey did not consider the project site to be a wetlands area. The GAO was unsatisfied with this response and held that the agency's failure to clarify its position on the issue violated the fundamental principle of negotiated procurements that a solicitation must provide for the submission of proposals based on a common understanding of the agency's requirements.

The GAO recommended that the agency reopen the competition and hold meaningful discussions with AMEC, and other offerors, as necessary. Further, the GAO indicated that the discussions with AMEC, at a minimum, should address the agency's concerns regarding AMEC's choice of software and clarify its position regarding the wetlands issue. The GAO also ruled that agency was required to reimburse AMEC's costs for filing and pursuing the protest, including attorneys' fees.

After losing a negotiated procurement, it would be wise to request a debriefing from the agency. While at the debriefing, it is important to uncover not only the reasons behind the rejection, but also to determine the nature of the discussions with the competing offerors. If you believe the government conducted inappropriate discussions during a negotiated procurement which you lost, it may be appropriate to file a bid protest. The Cohen Seglias Pallas Greenhall & Furman Federal Construction Practice Group can help you determine if you have a valid bid protest and help you through the process.

Michael Payne is a Partner and is the Chairman of the firm's Federal Practice Group.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

By: Michael H. Payne

It is not uncommon, in best value negotiated procurements, for a solicitation to announce that the technical evaluation factors, collectively, are more important than price.  Construction contractors, of course, still remember the days of sealed bidding where the lowest bidder received the award and they are not very receptive to hearing about a subjective technical evaluation that results in an award to a higher priced proposal.  Nevertheless, the Federal Acquisition Regulation allows an award to a higher priced proposal, provided that an appropriate price/technical tradeoff has been made by the agency.

According to FAR 15.101-1(a), “A tradeoff process is appropriate when it may be in the best interest of the Government to consider award to other than the lowest priced offeror or other than the highest technically rated offeror.”  The regulations go on to provide, in FAR 15.101-1(b), that when using a tradeoff process, the following apply:
(1) All evaluation factors and significant subfactors that will affect contract award and their relative importance shall be clearly stated in the solicitation; and
(2) The solicitation shall state whether all evaluation factors other than cost or price, when combined, are significantly more important than, approximately equal to, or significantly less important than cost or price.

The key provision, found in FAR 15.101-1(c), however, provides that “The perceived benefits of the higher priced proposal shall merit the additional cost, and the rationale for tradeoffs must be documented in the file in accordance with 15.406.  This is where, in my opinion, the government frequently falls short.  It should not be enough for federal agencies to simply state that they have greater “confidence” or that they feel “more comfortable” with the higher priced proposal, they should be required to explain why the higher priced proposal is worth the price premium.  Unfortunately, many of the so-called price\technical tradeoff analyses that I have seen fall short of amounting to a rational explanation.

The U.S. Court of Federal Claims has held that price cannot be ignored simply because it is to be given less weight than the technical factors, and the Court has also stated an evaluation that fails to give price its due consideration is inconsistent with the Competition in Contracting Act and cannot serve as a reasonable basis for an award.   In this regard, it is important to note that FAR 15.308 provides that “the source selection decision shall be documented, and the documentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs.”  Indeed, the Court has stated that “Conclusory statements, devoid of any substantive content, have been held to fall short of this requirement, threatening to turn the tradeoff process into an empty exercise.  Indeed, apart from the regulations, generalized statements that fail to reveal the agency's tradeoff calculus deprive this court of any basis upon which to review the award decisions.”  Serco Inc. v. United States, 81 Fed.Cl. 463 (2008).

Unfortunately, a contractor who believes that he may have been victimized by an arbitrary price\technical tradeoff does not have direct access to the government’s documentation needed to determine whether his suspicions are correct.  It is necessary to first file a protest in order to gain access to the government’s internal documentation and, even then, only the protester’s attorney is permitted to review the documents.  Source selection documents, including a price\technical tradeoff analysis, are only made available after the entry of a Protective Order that swears the attorney to secrecy.  Nevertheless, once an experienced federal government contracts attorney reviews the agency’s documents, it will be possible for that attorney to advise the contractor as to whether a valid basis for protest exists.  If the agency’s documentation seems to be in order and makes rational sense, the protest can always be withdrawn.  It is a sad commentary, however, that contractors often need to file a protest in order to determine whether there is a valid basis to protest.

Michael H. Payne is the Chairman of the firm's Federal Practice Group and frequently advises contractors about whether the government has conducted a proper source selection, and whether a price\technical tradeoff was conducted in accordance with the law. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

By: Lane F. Kelman

In making an award on initial proposals, is a tradeoff only between the two (2) highest-rated, highest-priced proposals appropriate?  The GAO, in a recent decision,Coastal Environments, Inc., B-401889, dated December 18, 2009, provides important clarification.  The decision beckons closer scrutiny of awards by unsuccessful offerors.

In Coastal Environments, Inc., the RFP identified six (6) evaluation factors in descending order of importance: (1) personnel and company qualifications, (2) management capability, (3) technical excellence, (4) past performance, (5) small business participation, and (6) price; the RFP also identified several subfactors under the non-price evaluation factors. Award was to be made to the responsible offeror whose proposal was determined to represent the “best value” to the government, all factors considered.

Eight proposals were received and evaluated using the adjectival rating system.  The contracting officer, as the Source Selection Authority (‘SSA”), reviewed the evaluation findings and performed a price/technical tradeoff between the two most highly rated proposals; those of Ecological Communications Corporation (“ECC”) and another Offeror.  Those two proposals were also the highest priced proposals. The Source Selection Authority (“SSA”) ultimately selected ECC for award after concluding that “due to the highly specialized nature of the work…ECC’s technical superiority” justified paying an additional $2,984 to ECC.

Coastal, who was not part of the tradeoff process, filed a protest and alleged, among other issues, that the tradeoff process should not have been restricted to ECC and the other most highly rated offeror. Coastal’s proposal, while not as highly rated, was $17,434.44 lower in price than GCC’s proposal.  The GAO held that the SSA impermissibly limited the price/technical tradeoff analysis to a comparison of the two highest-rated, highest-priced proposals.  The SSA failed to conduct any qualitative assessment of the technical differences between the two (2) highest-rated, highest-priced proposals and any of the other technically acceptable proposals to determine whether either of these proposals contained features that would justify the payment of a price premium.

The GAO found that the two higher-rated, higher-priced proposals considered in the tradeoff both received overall adjectival ratings of “Good” and “Low Risk,” while Coastal’s proposal received the next lowest rating of “Acceptable” and “Low Risk,” but was priced approximately 20 percent lower. The GAO concluded that a proper tradeoff decision must, per Federal Acquisition Regulation § 15.308, provide a rational explanation of why a proposal’s evaluated technical superiority warrants paying a premium.  Here, the SSA did not identify what benefits in ECC’s proposal warranted paying a premium to ECC when compared to Coastal’s lower-priced proposal, which was found to be acceptable and low risk.

Lane F. Kelman is a Partner in the firm and a member of the Federal Contracting Practice Group

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A decision just published by the Government Accountability Office ("GAO"), Matter of Burchick Construction Co., mpany, involved a request for proposals issued by the Department of Veteran Affairs ("VA") for the construction of an ambulatory care center . After receiving five proposals and evaluating the technical evaluation factors, the VA conducted discussions with the offerors that only addressed their price proposals. The VA determined that the offeror providing the best value was Massaro Corporation at a firm fixed price of $38,530,000. Burchick Construction Company, whose price proposal of $36,686,000 was the lowest price offered, challenged the award of the contract to Massaro.

During the evaluation of technical proposals, the VA had determined that Burchick's proposal contained "weaknesses" in a number of factors, including past performance, identification of key personnel, and small business participation. Based on these perceived weaknesses, the VA scored Burchick with a total of 50.8 points out of a possible technical score of 100 points. The VA had given Massaro a score of 67.3 points. When the VA decided to discuss the price proposals, it also decided that it would not conduct discussions with the offerors with respect to the firms' technical proposals, because "none of the offerors could materially improve its technical proposal."

 

Burchick contended that the VA did not conduct meaningful discussions since the VA did not apprise Burchick of, or provide it with the opportunity to address, the significant evaluated weaknesses in its technical proposal. Burchick explained that it could have addressed each of the VA's concerns that resulted in the downgrading of its technical evaluation.

 

While the GAO conceded that agencies have considerable discretion in determining whether and how to conduct discussions in a negotiated procurement, it found that where discussions are conducted, an agency must identify deficiencies and significant weaknesses, at a minimum, in the proposals of each offeror in the competitive range. The GAO concluded that discussions must be meaningful, meaning that the discussions must be sufficiently detailed so as to lead an offeror into the areas of its proposal requiring amplification or revision.

 

The GAO found that the VA failed to conduct meaningful discussions with Burchick, and that there was a reasonable possibility that Burchick was prejudiced, given that it offered the lowest price and could have addressed the VA's concerns such that it may have been offering the "best value" to the government. The GAO sustained the protest and recommended that the VA conduct discussions with the offerors about the technical proposals, and make a new source selection decision.

The GAO also criticized the agency's reliance on a numerical comparison of the proposals to determine "best value." While not specifically challenged by Burchick, the GAO noted that a mechanical comparison of the technical and price point scores is not a valid substitution for the qualitative assessment of the technical differences or the benefits associated with a higher priced proposal. Point scores are merely guides, and the record must contain adequate documentation of the price/technical tradeoff to support an agency's judgment concerning the significance of the differences is reasonable and adequately justified in light of the evaluation scheme. 

 

It should be noted that the Federal Acquisition Regulation does address the extent of the discussions which are to be conducted with offerors in the competitive range. FAR 15.306(d)(3) provides that:

 

At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award. However, the contracting officer is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of contracting officer judgment.

 

While it is not uncommon for the GAO to defer to the discretion afforded the agency in negotiated procurements, that deference, as demonstrated in the Burchick decision, is not absolute. In instances where, as here, the agency's actions are clearly not in accordance with the requirements of the FAR, seeking redress in a protest before the GAO can sometimes result in a favorable outcome.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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
• Share Link