SUBSCRIBE NOW
Introduction
General Counsel, P.C.'s Government Contracts Practice Group is pleased to provide you with the Bid Protest Weekly. Researched, written and distributed by the attorneys of General Counsel, P.C., the Bid Protest Weekly allows the Government Contract community to stay on top of the latest developments involving bid protests by providing weekly summaries of recent bid protest decisions, highlighting key areas of law, agencies, and analyses of the protest process in general.
General Counsel, P.C.'s Government Contracts Group has over eighty years of combined government contract law experience (both as in-house and outside legal counsel), helping clients solve their government contract problems relating to the award or performance of a federal government contract, including bid protests, contract claims, small business concerns, and teaming and subcontractor relations.
If you have any questions or comments regarding the discussed content, or questions about bid protests, please feel free to contact the attorneys at General Counsel, P.C. at (703) 556-0411 or visit us at www.generalcounsellaw.com.
1. American Physical Security Group, LLC, B-405059, July 25, 2011
Link: GAO Opinion
Agency: Department of State
Disposition: Protest denied.
Keywords: Technical Evaluation
General Counsel P.C. Highlight: An offeror is required to prepare its proposal in accordance with the terms of the solicitation and, where discussions occur, to address and supplement areas of weakness identified in discussions.
American Physical Security Group, LLC (APSG) protests the award of contract under a request for proposals (RFP), issued by the Department of State (DOS), for forced-entry/ballistic-resistant windows.
The RFP, issued as a small business set-aside, provided for the award of an indefinite-delivery/indefinite-quantity (ID/IQ) contract for the fabrication and installation of aluminum forced-entry/ballistic-resistant windows. Detailed performance specifications required that the windows achieve specific "security-related resistances, along with other indicated performances." Offerors were informed that award would be made on the basis of low price and technical acceptability. The RFP identified a number of technical evaluation factors, including, that the agency would evaluate the offeror's submission for compliance with the stated specifications, which could be shown by providing a certification letter from the agency's Bureau of Diplomatic Security (DS). Additionally, this factor required that offerors provide sample shop drawings with each DS certification. The RFP also identified product compliance as another factor.
APSG's proposal was found to contain numerous deficiencies and weaknesses. A number of the deficiencies reflected the evaluators' judgment that APSG had failed to provide documentation establishing compliance with specification requirements, such as, for example, for air infiltration and water penetration. DOS conducted discussions with each of the offerors and informed APSG of each of the evaluated deficiencies and weaknesses in its proposal and requested the firm's final proposal revisions. DOS received and evaluated revised proposals from the offerors, including APSG. The agency found that APSG's proposal continued to be technically unacceptable.
The record supports the agency's determination that APSG's proposal was deficient in a number of regards and therefore technically unacceptable. For example, the evaluators found that APSG did not demonstrate that its proposed windows would satisfy the RFP's air infiltration requirements. Specifically, the solicitation required offerors to demonstrate through laboratory test reports and other documentation that their proposed fixed windows would not have air infiltration exceeding a rate of 0.010 cubic feet per minute/square feet. In its initial proposal, APSG provided a one-page test result summary for an air infiltration test done on an "aluminum fixed window," which stated that the tested window would satisfy the solicitation's air infiltration requirements. APSG did not provide a more complete test report. In discussions, DOS informed the protester that it had failed, with respect to the air infiltration requirements, to provide "documentation of compliance with the specified testing." In response, APSG merely informed the agency that it was "not correct" and resubmitted the same one-page summary that was provided in its initial proposal.
We find that the agency reasonably found APSG's proposal deficient for failing to provide testing reports demonstrating the compliance of its proposed windows for the air infiltration requirements. The RFP specifically required offerors to provide documentation, including laboratory test reports, demonstrating such compliance. APSG failed to do so, despite being specifically informed of this deficiency in discussions and despite a more complete report being available. The protest is denied.
2. A1 Procurement, JVG, B-404618.3, July 26, 2011
Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest denied.
Keywords: Joint Venture; SDVO Set-Aside
General Counsel P.C. Highlight: Where the solicitation requires offerors to be SDVO small businesses and verified by the VA's VetBiz program, a proposal from a joint venture, which itself is not listed in the VetBiz database, is not eligible for award, even though the SDVO member of the joint venture may be so listed.
A1 Procurement, JVG, a joint venture (A1) protests the rejection of its proposal and the award of a contract to another offeror, under a request for proposals (RFP), issued by the Department of Veterans Affairs (VA), as a service-disabled, veteran-owned small business (SDVOSB) set-aside for ground maintenance services.
With regard to the procurement at issue, the RFP was issued as an SDVOSB set‑aside for the award of a fixed-price contract for grounds maintenance services at the Golden Gate National Cemetery in California. Offerors were informed that award would be made on a best value basis, considering technical capability, past performance, and price.
A1 Procurement, LLC, and Green Carpet finalized a joint venture agreement forming A1 Procurement, JVG. The joint venture submitted its proposal to the VA on the due date. The VA rejected A1's proposal because its proposed price was significantly below the government cost estimate and the prices of the other offerors. A1 protested. GAO sustained the protest because the record did not show that the agency's price evaluation was reasonable. GAO recommended that the agency reevaluate the protester's proposal, and as a part of this reevaluation, consider whether the joint venture was an eligible SDVOSB concern to receive award. Subsequent to our decision, the VA rejected A1's proposal because the joint venture, which was stated to be a separate entity, was not listed in the VetBiz database. The VA also determined that A1's joint venture agreement provided that the small-business partner in the joint venture would perform substantially all of the work required by the contract, which the VA found violated the subcontracting limitations in VAAR.
Al JVG protests that the VA's rejection of its proposal was unreasonable because the contracting officer erroneously concluded that the joint venture was not listed in the VetBiz database. GAO agrees with the VA's conclusion that A1 was not eligible to receive award under the VA's regulations. Contrary to A1's arguments, the VA's regulations do not exempt a joint venture from the requirement that it must be listed in the VetBiz database to be eligible for award. The offeror here is A1 JVG, and A1 JVG, as opposed to A1 LLC, is not listed. In sum, given that the joint venture is not listed in the VetBiz database, which the VA has required in its implementation of this program, the contracting officer reasonably rejected A1's proposal as ineligible for award. The protest is denied.
3. Rod Robertson Enterprises, Inc., B-404476, January 31, 2011
Link: GAO Opinion
Agency: Department of Justice
Disposition: Protest denied.
Keywords: Past Performance Evaluation
General Counsel P.C. Highlight: Unless there is a clear reason to question the validity of the past performance information, an agency is not required to communicate matters of adverse past performance where no discussions are conducted under an acquisition.
Rod Robertson Enterprises, Inc. protests the award of a contract, by the Department of Justice, Federal Prisons Industries, Inc. (UNICOR), under a request for proposals (RFP), for vehicle towing, storage, maintenance, and disposal services for the U.S. Marshals Service in the Southern District of Texas.
The RFP was issued as a small business set-aside. The RFP anticipated the award of a fixed-price contract for a base year with four one-year options. The solicitation stated that the award would be made to the offeror whose proposal provides the best value to the government considering past performance and price. The solicitation required contractors to provide information on contracts that it "worked on within the last three years" that were similar in scope and relevant to the instant procurement. The RFP also stated that the agency "may award" a contract based on initial offers received without discussions.
Two offerors were found to be in competitive range. The agency sent past performance surveys to each reference provided by the two offerors. The agency used the surveys to complete a past performance evaluation on each offeror.
Rod Robertson submitted three contracts on which it recently worked. The past performance references rated Rod Robertson's performance as outstanding on one contract, unsatisfactory on another contract and satisfactory on the third contract. Rod Robertson received an overall satisfactory rating under the past performance factor. The agency made award to the other offeror without discussions.
Rod Robertson challenges the past performance evaluation. GAO states that, as a general matter, the evaluation of an offeror's past performance is within the discretion of the contracting agency, and GAO will not substitute its judgment for reasonably based past performance ratings. A protester's mere disagreement with the agency's determinations as to the relative merit of competing proposals, and its judgments as to which proposal offers the best value to the agency, does not establish that the evaluation or source selection was unreasonable.
Rod Robertson contends that the agency's evaluation applied unannounced evaluation criteria by dividing the past performance questionnaire information into what were essentially discrete subfactors, which were not disclosed in the solicitation. The solicitation stated offerors were required to provide information regarding "the level of performance, in terms of delivery and quality achieved . . . and should reflect the offeror's record of performance in the areas of conforming to specifications, adherence to contract schedules, reputation for reasonable and cooperative behavior, commitment to customer satisfaction and business-like concern for the interest of the customer." The past performance surveys sent to each reference provided by the offerors consisted of 12 questions that were broken down by the agency in the evaluation process into the following five past performance areas: quality of service, timeliness of performance, price/cost control, business relations, and customer satisfaction. The agency was not required to specifically identify these five areas in the solicitation as subfactors because they were reasonably related to the past performance factor as described in the solicitation. Agencies are not required to specifically identify subfactors comprising an evaluation criterion where the subfactors are reasonably related to the stated evaluation criterion, nor are they required to disclose the specific evaluation methodology that they intend to use in making evaluation judgments regarding firms' proposals.
Rod Robertson argues that the agency's evaluation of its past performance contract that received an unsatisfactory rating constituted "adverse information," which the protester should have received an opportunity to address. However, where, as here, discussions are not conducted under an acquisition, an agency is not required to communicate with offerors regarding questions about adverse past performance, unless there is a clear reason to question the validity of the past performance information. The protest is denied.
4. KNAPP Logistics Automation, Inc.--Protest and Costs, B-404887.2; B-404887.3, July 27, 2011
Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest and request denied.
Keywords: RFP Cancellation
General Counsel P.C. Highlight: In a negotiated procurement, such as this one, a contracting agency has broad discretion in deciding whether to cancel a solicitation, and need only establish a reasonable basis for doing so.
KNAPP Logistics Automation protests the corrective action undertaken by the Department of Veterans Affairs (VA) in response to KNAPP's protest of the award of a contract, under a request for proposals (RFP), for a tablet capsule automation (TCA) system. KNAPP also requests that GAO recommend that VA reimburse the protester's costs of filing and pursuing its earlier protest concerning this procurement.
The solicitation sought proposals to replace VA's TCA system in North Charleston, South Carolina. After the contract was awarded to another offeror, KNAPP filed a protest challenging the award. Prior to submitting a supplemental report responsive to the protest, VA advised GAO that it would take corrective action in response to the protest, based on the following determination, "Upon review of the record, VA has determined that corrective action is necessary. VA has determined that it will cancel the award to [the awardee] and that a new solicitation for the [TCA] system . . . will be issued in the near future." GAO dismissed the protest.
KNAPP argues that VA should not have cancelled the solicitation, and should have instead awarded it the contract as the lowest-priced, technically acceptable offeror. 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 corrective action taken in response to a protest are within the sound discretion and judgment of the contracting agency. 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.
The agency stated that it would take corrective action by canceling the award to the awardee and issuing a new solicitation. In response to the instant protest and request for costs, VA has provided additional information concerning its rationale for opting to cancel and resolicit. First, the agency concluded that the awardee's proposal had improperly taken exception to the solicitation with regard to the payment terms. For this reason, the agency contends that it properly took corrective action and terminated the awardee's contract. Second, the agency states that it concluded that cancellation of the solicitation was necessary because the agency intends to add additional requirements to the TCA system. In this regard, VA states that the agency currently uses a manual mail packaging system, and it intends to add additional requirements to the TCA procurement.
GAO states that in a negotiated procurement, such as this one, a contracting agency has broad discretion in deciding whether to cancel a solicitation, and need only establish a reasonable basis for doing so. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs, or where there is a material increase in the services needed to satisfy the agency's requirements; in such cases, cancellation of the solicitation and issuance of a revised solicitation is appropriate. GAO states that VA's basis for canceling the solicitation was reasonable. In this regard, the corrective action addressed the protest argument that award to the awardee was improper. Furthermore, the corrective action was based on the agency's determination that new requirements will require the agency to issue a revised solicitation and obtain new proposals, which precludes award to KNAPP based on its existing proposal. On this record, GAO concludes that VA's corrective action was reasonable.
Next, KNAPP requests that GAO recommend that it be reimbursed the costs of filing and pursuing its initial protest. GAO states that when a procuring agency takes corrective action in response to a protest, it may recommend reimbursement of protest costs, including reasonable attorneys' fees, if, based on the circumstances of the case, GAO determines that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest, thereby causing the protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief. A protest is clearly meritorious where a reasonable agency inquiry into the protester's allegations would reveal facts showing the absence of a defensible legal position. Additionally, while GAO considers corrective action to be prompt if it is taken before the due date for the agency report responding to the protest, it generally does not consider it to be prompt where it is taken after that date.
Rather than provide a supplemental report addressing this matter, VA took corrective action. As the agency acknowledges, the corrective action was based in part on KNAPP's argument that the awardee's proposal had improperly taken exception to the terms of the solicitation. GAO finds that the corrective action was prompt. As GAO has held, an agency's corrective action is prompt when it is taken in response to a supplemental protest argument prior to providing the agency's response to that newly-raised argument. GAO concludes that there is no basis to recommend reimbursement of the protester's costs. The protest and request for costs are denied.
5. MediaNow, Inc., B-405067, June 28, 2011
Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
Keywords: Brand Name or Equal
General Counsel P.C. Highlight: With respect to the offer of an "equal" product, an offeror's proposal must demonstrate that its product conforms to the salient characteristics listed in the solicitation.
MediaNow, Inc. protests the award of a contract under a request for quotations (RFQ), issued by the Department of the Navy, Naval Inventory Control Point-Mechanicsburg, for digital signage solutions and hardware at Navy shipyards.
The RFQ contemplated the award of an indefinite-delivery/indefinite-quantity (ID/IQ) contract for two years, for a guaranteed minimum of $400,000 and a maximum of $2 million over the life of the contract. The RFQ specified the use of Cisco Systems, Inc. or "equal" products, including digital media manager and video on demand appliances, outdoor billboards, LCD monitors, speakers, media players, and associated maintenance, technical support, installation and training. Award was to be made to the vendor with the lowest-priced, technically acceptable quotation.
MediaNow initially submitted quotations offering two alternate "equal" product solutions. The evaluators found each solution had numerous deficiencies. In discussions, the agency identified the deficiencies in MediaNow's solutions and provided it an opportunity to revise its quotation. MediaNow's final quotation offered VBrick products as a new "equal" solution. As with its prior solutions, the evaluators found that MediaNow's new solution indicated noncompliance with some requirements and failed to provide information demonstrating that its products met various other salient characteristics. Although MediaNow's quotation offered the lowest price, its quotation was evaluated as technically unacceptable.
MediaNow asserts that the agency misevaluated its proposal; according to the protester, its products meet or exceed all salient characteristics. GAO states that in reviewing a protest of an agency's evaluation of proposals, its review is confined to a determination of whether the agency acted reasonably and consistent with the terms of the solicitation and applicable statutes and regulations. It is the offeror's duty to include sufficiently detailed information in its proposal to establish that the equipment offered meets the solicitation requirements; blanket statements of compliance are insufficient to fulfill this duty. Further, with respect to the offer of an "equal" product, an offeror's proposal must demonstrate that its product conforms to the salient characteristics listed in the solicitation.
In determining that MediaNow's quotation was unacceptable, the evaluators found at least 19 instances where the vendor failed to demonstrate that each of its equal items satisfied all of the salient characteristics. For example, the RFQ required the digital media manager appliance to remotely control and manage digital display properties such as on/off, contrast, brightness, and volume; to archive content/assign metadata to assets; and to offer a minimum of six gigabytes RAM. However, apart from general statements that its VBrick product could "meet" these requirements, MediaNow's quotation, including its attached product information sheets, provided no information that demonstrated these capabilities. Even in its protest submissions MediaNow fails to identify where in its quotation the required information may be found. On this record, GAO concludes that the agency reasonably found that MediaNow's various blanket statements of compliance were inadequate to establish that its products met all salient characteristics. In these circumstances, MediaNow's quotation was properly found to be unacceptable. The protest is denied.
