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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.
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1. CMJR, LLC d/b/a Mokatron, B-405170, September 7, 2011
Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: Past Performance Evaluation
General Counsel P.C. Highlight: An agency's past performance evaluation may be based on a reasonable perception of a contractor's prior performance, regardless of whether that contractor, or another offeror, disputes the agency's interpretation of the underlying facts, the significance of those facts, or the significance of corrective actions.
CMJR, LLC d/b/a Mokatron (Mokatron) protests the award of a contract under a request for proposals (RFP), issued by the Department of the Air Force for the operation and maintenance of the March Air Reserve Base telecommunication system.
The RFP, which was set aside for service-disabled veteran-owned small businesses, provided for the award of a fixed-price indefinite-delivery/indefinite-quantity (ID/IQ) contract for a five-month base period and up to five years of performance, including options. The RFP established three evaluation factors: technical, present/past performance, and price. For those proposals that were technically acceptable, the source selection decision would be based on a tradeoff between present/past performance and price, with those two factors being of approximately equal importance. With respect to the present/past performance factor, the RFP required offerors to provide past performance information on up to 10 recent contracts (those that were currently being performed or had been performed within three years of the date the solicitation was issued) that demonstrated the offeror's ability to perform under the proposed contract. The RFP also provided that a new corporate entity could submit data on prior contracts involving its officers, employees, and key personnel who have relevant experience. The RFP provided that each present/past performance proposal would receive an integrated performance confidence assessment, which reflected the degree of confidence the agency had in the offeror's ability to perform the required services to meet the agency's needs.
In its proposal, Mokatron stated that it was founded in November 2009, and that it consisted of three members: the president of a company called Newcom Telephone Company (NTC); the owner of another company, Definitive Voice and Data, Inc. (Definitive); and the president of a construction firm, Harris and Associates. Mokatron identified seven contracts for review, three performed by NTC and four performed by Definitive. With regard to one of the NTC contracts, Mokatron's proposal noted that NTC had received a contract discrepancy report for failing to complete a project on time. A performance confidence assessment group (PCAG) reviewed the seven contracts submitted by Mokatron and determined that only two of the NTC contracts and two of the Definitive contracts were recent. Of those four, the agency concluded that neither of the Definitive contracts were relevant, that only one of the NTC contracts was relevant, and that the other NTC contract was somewhat relevant.
Next, the PCAG assessed Mokatron's quality of performance by reviewing the CPARs for the two recent, relevant/somewhat relevant NTC contracts. In performing this review, the PCAG concluded that the specific narrative description of NTC's past performance in the CPARs reflected greater risk, and lower adjectival ratings than was reflected in the ratings assigned by the initial assessing official. The PCAG also reviewed the contract discrepancy report NTC received in connection with its failure to complete work on time on the relevant contract. The PCAG further reviewed the pre-award surveys that had been performed for Mokatron, NTC, and Definitive as part of its confidence assessment. The surveys focused on the technical and financial aspects of the firms. Mokatron's pre-award survey noted that the overall viability of the firm was high risk because it was a "'start-up' company, with no historical financial statements, no performance history, and no production activity." The pre-award survey nevertheless recommended award to Mokatron because NTC provided a corporate guarantee agreement on behalf of Mokatron. Based on the evaluation, the PCAG rated Mokatron's proposal as limited confidence under the present/past performance factor.
The source selection authority (SSA), who was also the contracting officer, reviewed each offeror's performance information, including the past performance proposals, the CPARs, the pre-award surveys, and the PCAG assessment. With regard to Mokatron, the SSA reviewed the CPARs from the two NTC contracts, specifically noting the initial assessing official's ratings, the recommendations for performance improvement, NTC's failure to timely complete a prior project leading to a contract discrepancy report, and the corrective actions NTC had undertaken.
With regard to the awardee, the SSA assigned its present/past performance proposal a substantial confidence rating. The SSA conducted a performance/price tradeoff and selected the awardee's higher-rated, higher-priced proposal for award.
The protester challenges the agency's evaluation under the present/past performance factor. More specifically, Mokatron contends that the Air Force unfairly discounted its status as a new corporate entity, failed to properly evaluate its CPARs, and failed to consider the corrective action it had undertaken. An agency's past performance evaluation may be based on a reasonable perception of a contractor's prior performance, regardless of whether that contractor, or another offeror, disputes the agency's interpretation of the underlying facts, the significance of those facts, or the significance of corrective actions. A protester's mere disagreement with the agency's judgment is not sufficient to establish that the agency acted unreasonably.
Mokatron first contends that it was unreasonable for the Air Force to assign its proposal a limited confidence rating under the present/past performance factor "based on the sole fact" that Mokatron is a newly formed entity. Mokatron further complains that the agency "entirely discounted" the performance history of its key personnel. Here, contrary to Mokatron's assertion that the rating was "based on the sole fact" that Mokatron is a newly formed entity, the record shows the agency based its final assessment on multiple sources of information, including the offeror's present/past performance proposal, the CPARs, the PCAG evaluation, and the pre-award surveys.
Based on GAO's review of the record, GAO rejects the protester's assertion that the Air Force based Mokatron's past performance rating on the "sole fact" that Mokatron was a newly formed entity, or that it "entirely discounted" the performance history of its key personnel. To the contrary, the bulk of Mokatron's evaluation related to NTC's prior contracts, showing that the agency gave Mokatron credit for its members' performance despite being a new corporate entity. Similarly, the record shows that in reaching the limited confidence rating decision, the SSA considered multiple sources of information. Mokatron's assertions in this regard are without merit.
Finally, Mokatron argues that the PCAG's present/past performance evaluation was improper for failing to accept the adjectival ratings contained in the CPARS that were reviewed. Mokatron further contends that the PCAG's evaluation unfairly emphasized negative past performance, did not reflect an "independent investigation," and was otherwise "arbitrary and capricious." GAO states that an evaluating official may properly look behind an adjectival rating to determine the relative strengths or weaknesses that the rating reflects. Further, an agency has broad discretion to determine the manner and extent to which it will rely on summary ratings and the written narratives underlying such ratings.
As noted above, the PCAG concluded that the CPARs' narrative descriptions of NTC's past performance properly reflected greater risk and lower adjectival ratings than the ratings assigned by the initial assessing official. In this regard, the PCAG relied on specifically identified aspects of NTC's prior performance that were discussed in the CPARs. Based on GAO's review of the record, GAO finds no basis to question the reasonableness of the PCAG's evaluation. The protest is denied.
2. United Terex, Inc. - Protest B-405070.3; B-405070.4, September 27, 2011
Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
Keywords: Cost-Technical Trade-Off
General Counsel P.C. Highlight: Even where price is the least important evaluation factor, an agency properly may award a contract to even a lower technically rated firm where it reasonably concludes that the price premium involved in selecting the higher-rated quotation is not justified in light of the acceptable level of technical competence available at a lower price.
United Terex, Inc. protests the issuance of a purchase order under a request for quotations (RFQ), issued by the Department of the Navy for aircraft tow bars.
The RFQ, a set-aside procurement for small businesses, requested quotations for a fixed-price purchase order for 20 "ALBAR" aircraft tow bars. The RFQ, which provided for simplified acquisition procedures set out in Federal Acquisition Regulation (FAR) Part 13, did not require the submission of technical quotations or first article testing samples. The RFQ also provided that where the vendor had not previously manufactured the required tow bar, inspection and acceptance would be conducted by the Defense Contract Management Agency. As to the evaluation of quotations for selection, the RFQ anticipated the use of two evaluation factors, price and past performance (with past performance being significantly more important than price). For the purpose of evaluating past performance, vendors were instructed to submit references from a minimum of three government/state/local agencies where the vendor had provided "same/similar equipment."
After consideration of the relative merits of the quotations, the source selection authority determined that, although United Terex had more directly relevant past performance experience, as it had previously manufactured the required ALBAR tow bars, given the level of the awardee's technical competence shown by its favorable past performance evaluation, the approximate 50% price premium associated with the selection of United Terex for a purchase order under the RFQ was not warranted. The agency, having determined that GAI's quotation presented the best value, selected GAI as the successful vendor and issued a purchase order for the current ALBAR tow bar requirement to the firm.
United Terex challenges the agency's past performance evaluation, contending that, since the awardee has not yet manufactured the precise item required here, or other aircraft tow bars for use aboard aircraft carriers, it was unreasonable for the agency to determine that the awardee had "favorable" past performance.
As an initial matter, to the extent United Terex suggests that the RFQ required only ALBAR or other aircraft carrier tow bar experience, GAO disagrees. The solicitation merely provided that the agency would consider vendors' prior contracts for the provision of the same or similar equipment. The RFQ did not state how similarity would be determined or measured nor did it state that a firm's experience with the same equipment would be considered materially more important than a firm's experience with similar equipment. Given the general wording of the RFQ's past performance evaluation criterion, there is no basis for the type of stringent evaluation advanced by the protester.
The record reflects, as noted above, that the agency gave United Terex credit for the firm's successful performance of recent orders for the same ALBAR tow bars required under the solicitation and, based on this review, assigned United Terex a favorable past performance rating. Unlike United Terex, the awardee had not manufactured the ALBAR tow bars; thus, the agency reviewed past performance information it obtained for the awardee regarding past and current contracts, which the agency deemed to be for similar equipment. In assessing the similarity of the awardee's references, the record reflects that the agency reviewed the type of work performed to determine if the end items were manufactured in a manner similar to the solicited tow bars, including build-to-print projects and those using similar skills and materials. More specifically, GAO's review of the record confirms that the agency obtained and considered performance information for the awardee concerning 14 prior projects, including projects providing various aircraft ground support equipment, including other large metal stress and load-bearing equipment which, in the agency's judgment, involved the firm's extensive machine shop experience with the same or similar manufacturing processes needed to perform the requirements of this solicitation.
The protester also challenges the reasonableness of the agency's tradeoff determination in which the source selection authority concluded that, despite the protester's more directly relevant experience manufacturing the precise item required here, given the level of the awardee's technical competence to manufacture the item, as demonstrated by the information revealed and considered during the firm's past performance evaluation, the payment of the substantial price premium associated with the selection of United Terex is not warranted. GAO states that it is well-settled that, even where price is the least important evaluation factor, an agency properly may award a contract to even a lower technically rated firm where it reasonably concludes that the price premium involved in selecting the higher-rated quotation is not justified in light of the acceptable level of technical competence available at a lower price.
Here, the record shows that the source selection authority reviewed the past performance evaluation record, recognized past performance was more important an evaluation factor than price, and that United Terex's quotation demonstrated more directly relevant past performance experience (with the same equipment) as compared with the awardee's quotation (which showed experience with similar equipment). The source selection authority, however, concluded that the payment of a 50% price premium for United Terex to do the work was not justified. GAO sees no basis to object to this determination.
3. Science Applications International Corporation, B-405155.3, October 3, 2011
Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Request granted.
Keywords: Bid Protest Costs
General Counsel P.C. Highlight: If GAO determines that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest, GAO will recommend payment of protest costs.
Science Applications International Corporation (SAIC) requests that GAO recommend that it be reimbursed the costs of filing and pursuing its protest challenging a determination by the Department of the Air Force to eliminate SAIC's proposal--based on an alleged organizational conflict of interest (OCI)--from the competition under a request for proposals, for the Air and Space Operations Center weapon system modernization program.
SAIC protested that the agency unreasonably determined that the protester had an unequal access to information OCI which disqualified it from participating in the competition; that it failed to treat all offerors equally in this regard; and that it failed to follow the requirements of the Federal Acquisition Regulation (FAR). In response to SAIC's protest, the agency submitted a report to which SAIC filed comments and a supplemental protest. After the agency submitted a supplemental report and SAIC submitted its comments, the GAO attorney held an alternative dispute resolution (ADR) conference, in which he engaged in outcome prediction. He advised the parties that it was not clear from the record that the agency's determination to exclude SAIC was reasonable or that the agency had followed applicable regulations in excluding SAIC. The GAO attorney did not recommend that SAIC be included in the competition, but suggested that the agency follow the requirements of FAR sect. 9.506 and document the process and, either revise its determination and findings (D&F) to ensure its clarity, or provide SAIC an opportunity to respond to the agency's concerns in the D&F, clearly documenting whatever approach it ultimately adopts.
Subsequently, the agency advised GAO that it was electing to take corrective action. Specifically, the agency intends to document its compliance with FAR sect. 9.506; amend the RFP as necessary; prepare a new D&F document for SAIC's review and comment; a new final D&F if required; and take other corrective action as deemed appropriate. The protest was dismissed. 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 necessary time and resources to make further use of the protest process in order to obtain relief. GAO's willingness to inform the parties through outcome prediction ADR that a protest is likely to be sustained, as GAO did, is generally an indication that the protest is viewed as clearly meritorious, and satisfies the "clearly meritorious" requirement for purposes of recommending reimbursement of protest costs. 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 do not consider it to be prompt where it is taken after that date.
Here, the agency acknowledges that it took corrective action in response to the ADR conference and states that it will consider a timely claim from SAIC for its reasonable costs, based upon a recommendation from GAO. Based on the clearly meritorious nature of the issues, and the agency's undue delay in taking corrective action, GAO recommends that SAIC be reimbursed the costs associated with filing and pursuing its protest, including reasonable attorneys' fees. SAIC should submit its certified claim, detailing the time spent and costs incurred, directly to the agency within 60 days of its receipt of this decision. The request is granted.
4. Kingdomware Technologies, B-405242, September 30, 2011
Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protests denied.
Keywords: Responsiveness
General Counsel P.C. Highlight: The offeror has the burden of unequivocally demonstrating its compliance with the terms of the RFQ.
Kingdomware Technologies protests the decision by the Department of Veterans Affairs (VA) not to award the firm a purchase order under a request for quotations (RFQ), to provide emergency notification services for the VA's Palo Alto Health Care System (VAPAHCS).
The RFQ sought quotations from vendors holding contracts under the General Services Administration Federal Supply Schedule for information technology software services. The RFQ was posted on FedBid.com, an on-line reverse auction procurement system. Vendors were advised that quotations would be evaluated for technical acceptability and price. A fixed-price purchase order would be issued to the lowest-priced vendor whose quotation conforms to the terms of the RFQ. Prospective vendors were advised that questions concerning this procurement should be submitted at the earliest possible time to allow the agency to respond. Vendors were also advised that questions not received within a reasonable time prior to close of the solicitation might not be considered.
As part of its quotation, Kingdomware included an attachment in which the protester stated, among other things, that it had sent questions concerning this procurement through FedBid and had also left a voicemail message for the contracting officer. Since its questions were not answered, the protester stated that it made certain "assumptions in connection with our GSA Schedule bid." The relevant assumptions were that, "Because Blackberrys support SMS delivery just as other smartphone devices that this is allowable; and we are also assuming that SMS delivery to the provider is allowable because this capability is much faster than using SMTP text messages." After reviewing Kingdomware's quotation, the VA concluded, based on the protester's "assumptions," that the firm offered "SMS delivery" of text messages rather than the required SMTP text messages, and the quote was therefore viewed as unacceptable.
Kingdomware takes issue with the agency's evaluation of its quotation, arguing that its quotation was in fact based on providing SMTP messaging. Specifically, the protester asserts that, consistent with the bidding requirements for FedBid, the firm expressly acknowledged "compliance with all of the terms of the buy," which implicitly included providing SMTP messaging.
Here, the quoted portion of the attachment included in Kingdomware's quotation identified a text messaging capability other than that specified in the RFQ which the protester assumed was "allowable" for this procurement. At a minimum, the Kingdomware quotation is unclear as to whether, as the protester claims, it could be read to indicate that the firm would provide the SMTP message capability, SMS messaging, or both. Since Kingdomware had the burden of unequivocally demonstrating its compliance with the terms of the RFQ, yet failed to do so, GAO has no basis to question the reasonableness of the agency's evaluation. A quotation which fails to conform to a material solicitation term and condition should be considered unacceptable and may not form the basis for an award. The protest is denied.
5. JRS Management, B-405361; B-405361.2; B-405361.3, October 3, 2011
Link: GAO Opinion
Agency: Department of Justice
Disposition: Protests denied.
Keywords: Technical Acceptability
General Counsel P.C. Highlight: A quotation that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award.
JRS Management protests the Federal Bureau of Prisons' (BOP) determination that the firm's quotation in response to a request for quotations (RFQ) was technically unacceptable.
The BOP issued the RFQ to provide the services of a computer aided drafting vocational trades instructor at the Federal Correctional Institution in Miami, Florida. The RFQ required that the vendor's instructor candidate possess the following experience and qualifications: (1) one year of teaching experience with demonstrated competencies, skills, and knowledge levels on which the instructor will be expected to teach; (2) State of Florida Teaching Certificate or non-degree Vocational Teaching Certificate; and (3) one year Computer Aided Drafting teaching experience. The RFQ also required that the vendor include in its quotation "supporting documentation" showing that its instructor candidate meets the above qualification and experience requirements. The RFQ stated that a vendor's failure to provide this information "may cause your quote to be considered unacceptable."
JRS was the only vendor to submit a quotation. However, the quotation did not identify where the candidate worked, provide any references for the agency to verify the candidate's experience, or include any supporting documentation to substantiate JRS' summary description of the candidate's teaching experience. The contracting officer contacted JRS requesting that JRS provide reference information for the instructor candidate so that the agency could verify the candidate's experience. The contracting officer explained that "I need the requested information . . . or you will not be consider[ed] for award."
JRS did not provide the requested information, and instead protested that requirement to GAO. Thereafter, the agency advised that JRS' quotation was technically unacceptable for failing to include supporting documentation evidencing the instructor's qualifications and experience. JRS then supplemented its protest, challenging the finding of technical unacceptability on the grounds that the solicitation did not require the submission of resumes or employment references. GAO states that in reviewing an agency's technical evaluation, it will examine the record to ensure that the evaluation was reasonable and consistent with the evaluation criteria and with procurement statutes and regulations. A quotation that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award.
GAO finds that JRS's quotation was properly found unacceptable. The RFQ's plain language required vendors to submit supporting documentation to show that the instructor candidate possessed the required qualifications and experience. Although the protester's quotation generally described the candidate's experience, the quotation did not include sufficient details (such as where the individual worked) for the agency to verify the experience. Furthermore, JRS failed to provide the information when repeatedly requested by the agency. Since the quotation did not contain any supporting documentation showing that the instructor candidate possessed the requisite experience, and JRS failed to provide the documentation when requested by the agency, GAO finds reasonable the agency's determination that JRS' quotation was technically unobjectionable. The protest is denied.
