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. 1. The GEO Group, Inc., B-405012, July 26, 2011
Link: GAO Opinion
Agency: Department of Justice
Disposition: Protest denied in part, dismissed in part.
Keywords: Procurement Integrity Violations
General Counsel P.C. Highlight: A contracting officer who receives or obtains information of a possible violation of the PIA must determine if the possible violation has any impact on the pending award or selection of the contractor.
The GEO Group, Inc. protests the award of a contract to Community First Services, Inc. (CFS), by the Department of Justice, Bureau of Prisons (BOP), under a request for proposals (RFP), for residential reentry center (RRC) services.
The RFP sought a contractor to provide community-based residential and non-residential correctional services. GEO, the incumbent contractor, and CFS submitted proposals. With the submission of its proposal, GEO included a letter to the agency alleging that its vice president for community corrections, who had directed its incumbent contract efforts, resigned suddenly after transmitting copies of confidential GEO information to his private email account. Apparently, unbeknownst to GEO group at the time, its former vice president was also the CEO and sole owner of CFS. Upon receiving the GEO letter, the contracting officer recognized that GEO's former vice president was the CEO of CFS, and noted similarly drafted passages in the GEO and CFS proposals. Based on these facts, the contracting officer recommended to the contracting section chief that the procurement be put on hold and that the issues presented in the GEO letter be investigated as a potential violation of the Procurement Integrity Act (PIA).
Two special agents from the Department of Justice, Office of Inspector General (DOJ OIG), were assigned to conduct the investigation. At the conclusion of the investigation, the special agents reported to the BOP contracting staff that based on a review of the interviews and relevant records, the DOJ OIG "could not substantiate bid rigging or procurement integrity violations." In this regard, the DOJ OIG did not find any evidence that elements of CFS's proposal had been derived from any of GEO's information. Based on these findings, the BOP directed the procurement to continue. After evaluation of proposals, the contracting officer found that CFS's proposal represented the best value to the government. The contracting officer then completed a certification of procurement integrity stating that, to the best of his knowledge, he was not aware of any violation of the procurement integrity act. The contracting officer also documented his affirmative responsibility determination.
GEO alleges that CFS violated the PIA, asserting that it is implausible that CFS did not utilize confidential GEO information obtained by the CFS CEO in preparing its proposal, and that the agency erred in ignoring this PIA violation. GAO states that the PIA provides that "[a] person shall not, other than as provided by law, knowingly obtain contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates." A contracting officer who receives or obtains information of a possible violation of the PIA must determine if the possible violation has any impact on the pending award or selection of the contractor. If the contracting officer concludes that a violation may impact the procurement, the contracting officer is required to report the matter to the head of the contracting activity (HCA). The HCA must review the information and take appropriate action, which includes either: 1) advising the contracting officer to proceed with the procurement; 2) beginning an investigation; 3) referring information to appropriate criminal investigative agencies; 4) concluding that a violation occurred; or 5) recommend to the agency head that a violation has occurred and void or rescind the contract. In the case of the BOP, the Justice Acquisition Regulation (JAR) further directs the contracting officer to refer possible violations of the PIA to the DOJ OIG.
Here, the agency followed exactly the procedures set forth above in investigating the alleged violation. Upon receiving information concerning a potential PIA violation from GEO, the contracting officer referred the matter to the HCA and the DOJ OIG. The DOJ OIG then thoroughly investigated the record, conducted interviews, and analyzed GEO computers before concluding that there was no indication of theft of GEO property or proprietary information, and no information to substantiate a PIA violation. On the basis of the investigation results, the HCA directed the contracting officer to proceed with the procurement. On this record, GAO sees no basis to conclude that a PIA violation occurred, or that the agency's actions were unreasonable.
GEO alleges that the DOJ OIG and BOP investigations failed to reasonably consider declarations of GEO's business manager stating that the CFS CEO requested, and was provided with, a draft of GEO's price proposal for this procurement prior to his resignation. The agency argues, and GAO agrees, that any protected pricing materials obtained by the CFS CEO in this manner are covered by the PIA's "savings clause," which provides in relevant part that "[t]his section does not . . . restrict a contractor from disclosing its own bid or proposal information or the recipient from receiving that information."
GEO objects to the application of the PIA savings clause in this context. GAO states that it has repeatedly determined that the PIA's savings provisions apply notwithstanding the fact that the voluntarily provided information is subsequently misused or not properly safeguarded. Here, GEO voluntarily provided its confidential information to the CFS CEO in the course of his employment with GEO. The CFS CEO's alleged misuse of that information in transferring it to CFS, breach of his fiduciary duties to GEO, or breach of GEO's corporate code of ethics, are matters of a private dispute not for resolution by GAO.
GEO also alleges that, based on the same facts underlying its PIA allegation, CFS has an improper, unmitigated, unequal access to information OCI. More specifically, GEO states that CFS obtained nonpublic, procurement-related information as a result of the CFS CEO's participation in GEO's management of the incumbent contract for these services. GAO states that an unequal access to information OCI exists where a firm has access to nonpublic information as part of its performance of a government contract and where that information may provide the firm a competitive advantage in a later competition. As the FAR makes clear, the concern regarding this category of OCI is that a firm may gain a competitive advantage based on its possession of "[p]roprietary information that was obtained from a Government official without proper authorization," or "[s]ource selection information . . . that is relevant to the contract but is not available to all competitors, and such information would assist that contractor in obtaining the contract."
As an initial matter, the agency reasonably found the protester's allegations to be unsubstantiated. In this regard, the agency relied on the findings of the DOJ OIG investigation, which found that CFS's proposal had been prepared by a third-party proposal writer, CFS's CEO did not alter the proposal in any way, and there was no credible evidence of the CFS CEO of having obtained GEO's pricing information. Moreover, as discussed in the context of the alleged PIA violation, above, the CFS CEO's alleged misuse of GEO's confidential information amounts to a private dispute not for resolution by GAO. The protest is denied.
2. 901 North Fifth Street, LLC, B-404997; B-404997.2, July 22, 2011
Link: GAO Opinion
Agency: General Services Administration
Disposition: Protest denied in part, dismissed in part.
Keywords: Executive Order Compliance
General Counsel P.C. Highlight: An agency's compliance with an Executive Order is a matter concerning Executive Branch policy, which GAO does not review.
901 North Fifth Street, LLC (901 North) protests the award of a lease by the General Services Administration (GSA) pursuant to a solicitation for offers (SFO) for office space to house the Environmental Protection Agency (EPA) regional headquarters.
901 North is the owner and current lessor of a building specifically built for and used by the EPA's regional office. GSA initiated informal discussions with a representative of the then current owner of the building and a representative of their real estate brokerage firm (which remained the same after the change of ownership) to explore the possibility for a 20-year, 10-year firm, fully-serviced succeeding lease. Among the considerations identified by GSA was the lessor's ability to achieve Leadership in Energy and Environmental Design for Existing Buildings (LEED-EB) Platinum certification, renovation of various areas of the building, replacement of carpeting, interior painting, and upgrading the restrooms. Although negotiations between 901 North, its broker, and GSA continued for an extensive period of time, they were ultimately to no avail. GSA ultimately determined that award of a succeeding lease to 901 North would not be in the best interests of the government, due primarily to the protester's failure to offer market rental rates. GSA therefore decided to conduct a competitive procurement for this requirement.
The SFO at issue was published to three building owners with buildings. The SFO sought offers for a maximum of 203,475 rentable square feet of office and related space yielding 182,554 usable square feet. The SFO also disclosed that the offered building must, at a minimum, meet the requirements of LEED for Existing Buildings Operations and Maintenance (LEED-EBO&M) Silver level; higher levels of LEED-EBO&M, such as Gold or Platinum, were preferred. The SFO required offerors to submit alternate offers: the first for a 10-year firm term, with two five-year renewal options; the second for a 20-year lease with a 10-year firm term. The agency reserved the right to evaluate each of the two offers and select the term deemed most advantageous to the government. The solicitation advised that award would be made to the firm whose offer was considered most advantageous to the government based on price and the following factors, listed in descending order of importance: (1) sustainability; (2) building and systems design; (3) development team experience; and (4) development team past performance. As relevant here, the sustainability evaluation factor consisted of the following equally-weighted subfactors: (a) LEED-NC [New Construction] or LEED-CS [Core and Shell] Silver, Gold or Platinum certification; (b) LEED-EBO&M gold or platinum certification; and (c) preferred features. With regard to price, the SFO stated that the agency would perform a present value price analysis to determine the annual ANSI/BOMA office area square foot price.
Offers were received from 901 North and another bidder by the closing date. Although, as noted above, the SFO required firms to submit two alternative offers, the protester submitted only one offer for a 10-year firm lease term with two five-year renewal options. The other offeror, on the other hand, submitted offers for a 10-year firm lease term with two five-year renewal options, and for a 20-year lease with a 10-year firm term, as required by the SFO. GSA held multiple rounds of discussions with the offerors during the evaluation. After each round of discussions, the source selection evaluation board (SSEB) evaluated offers, identifying "strengths," "weaknesses," and "deficiencies" in each offer. Based on the respective technical scores and prices of each offer, the contracting officer, as source selection authority (SSA), determined that the other offeror's offer was most advantageous to the government and awarded it the lease for a 10-year firm term with two five-year renewal options.
In its protest, 901 North argues that GSA: (1) improperly and unreasonably calculated move-related costs associated with Lenexa's offer; (2) failed to conduct meaningful discussions with the protester with regard to the first sustainability subfactor, LEED-NC or LEED-CS Silver, Gold, or Platinum certification requirement, Protester's Initial Comments at 8-16; and (3) failed to comply with Executive Order 12072. GAO states that its standard in reviewing evaluation challenges is to examine the record to determine whether the agency's judgment was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations. The protester's mere disagreement with the agency's judgment does not establish that an evaluation was unreasonable.
901 North complains that GSA incorrectly calculated the awardee's present value cost (PVC). More specifically, 901 North argues that the awardee's low PVC price of $21.40 per useable square foot resulted from GSA's undervaluing significant move related costs associated with relocating to the awardee's building. In this regard, the SFO provided that an offeror's PVC would be calculated by adding, "if applicable," "the cost of relocation of furniture, telecommunications, replication costs, and other move-related costs." While the protester maintains that the agency will experience other significant costs in excess of the TIA (replication costs) associated with the awardee's offer, it does not offer any support for, or explain, beyond merely citing the fact of the awardee's "low" PVC, its conclusion in this regard. Given the lack of evidence in the record to support the protester's contention that the costs associated with the awardee's building will exceed the available funds in the TIA, GAO views the protester's arguments as amounting to unsupported speculation and mere disagreement with the agency's assessments; thus, GAO has no basis to conclude that the agency's evaluation was unreasonable or otherwise inconsistent with the terms of the solicitation.
Next, 901 North contends that the discussions it received were misleading regarding the agency's intended evaluation of the sustainability subfactor A, LEED-NC or LEED-CS certification. According to the protester, during the course of discussions, it advised GSA that it was "impossible" for it "to achieve LEED requirements under Subfactor A" and that it was led to believe that it "would only be rated on the technical factors which it could actually achieve." The protester asserts that had it known Subfactor 1.A. accounted for 15% of the total possible technical points it could achieve, it "would not have chosen to compete in the Solicitation, as it was impossible for 901 North to obtain any points under Subfactor A." GAO states that competitive prejudice must be established before it will sustain a protest; where the record does not demonstrate that the protester would have had a reasonable chance of receiving the award but for the agency's actions, GAO will not sustain a protest, even if deficiencies in the procurement process are found.
Here, the alleged harm suffered by the protester as a result of the allegedly misleading nature of the agency's discussions does not constitute competitive prejudice. In this regard, as articulated by the protester, the agency's allegedly misleading discussions merely impacted the protester's own business decision of whether to continue in the competition. Since this does not bear on the propriety of the ultimate award decision, we have no basis to further consider the protester's allegations in this regard.
In a supplemental protest filed with GAO, the protester argued that the agency failed to comply with sections 1-102 and 1 203(c) of Executive Order 12072. GAO states that, as an initial matter, GSA's compliance with the EO is a matter concerning Executive Branch policy, which GAO does not review. In this regard, Executive Order 12072 prescribes policies and directives regarding the planning, acquisition, utilization and management of federal facilities. The underlying policy objective of the Executive Order is to "strengthen the Nation's cities" and "conserve existing urban resources and encourage the development and redevelopment of cities." GAO does not review allegations of an agency's failure to comply with Executive Branch policies under its Procedures, as a general matter. GAO will, however, review an agency's compliance with, or implementation of, such policies when it is contended that such policies are contrary to applicable procurement statutes and regulations. GAO may also consider compliance with an executive order to the extent the provisions of the order have been expressly incorporated as requirements by the terms of a solicitation.
Here, 901 North's protest merely challenges GSA's failure to properly implement the policies established solely by Executive Order 12072, which were not expressly incorporated as requirements in the SFO; thus, the issues raised are not for GAO's consideration. The protest is denied in part and dismissed in part.
3. Measurements International Inc., B-404981, July 15, 2011
Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: Technical Evaluation
General Counsel P.C. Highlight: In reviewing an agency's evaluation, GAO will not reevaluate technical proposals; rather, it will examine the agency's evaluation to ensure that it was reasonable and consistent with the solicitation's stated evaluation criteria and procurement statutes and regulations.
Measurements International Inc. protests the award of a contract by the Department of the Air Force under a request for proposals (RFP), for the purchase of resistance measurement systems (RMS).
The RFP sought proposals to provide RMS to be used by the Air Force Metrology and Calibration Program facility. The RFP advised that a single fixed-price contract would be awarded to the offeror who submitted the lowest-priced, technically acceptable proposal. The RFP did not require contractors to submit past performance information and did not identify past performance as a factor to be considered in the agency's award decision. With regard to technical acceptability, the RFP stated that each offeror's technical proposal would be evaluated to determine if it provided a sound, compliant approach that met the requirements of the solicitation's purchase description, and if it demonstrated a thorough knowledge and understanding of the requirements and their associated risks. Proposals were to identify risks associated with the proposed approach and actions the offeror would take to mitigate the identified risks. Offerors were permitted to submit proposals for new RMS or to upgrade the existing RMS.
The agency determined that both of Measurements' proposals to provide new RMS presented a high level of risk. Among other things, the agency stated that Measurements proposed an unrealistic amount of time to rework software, and this increased the risk of errors, quality issues, and delayed delivery of the systems. However, despite the high level of risk associated with Measurements' proposals, the agency found that the risk was not high enough to make Measurements' proposals unacceptable. Measurements' proposal was at a higher price and was rejected.
The protester argues that the awardee's proposal to upgrade the existing RMS posed a high degree of risk, and therefore the agency's determination that the proposal was technically acceptable was unreasonable. GAO states that in reviewing an agency's evaluation, it will not reevaluate technical proposals; rather, it will examine the agency's evaluation to ensure that it was reasonable and consistent with the solicitation's stated evaluation criteria and procurement statutes and regulations.
The protester argues that the age and performance history of the current units pose risks that the agency ignored when evaluating the awardee's proposal for technical acceptability. For example, the protester contends that the agency did not take into consideration that the units are more than 10 years old and are starting to fail. However, the record shows that the agency did consider whether the age and condition of the existing units would result in any risk associated with the proposal to upgrade the units. The record contains a memorandum to the file documenting a meeting of the evaluators to discuss the awardee's proposal risk, including what effect upgrading the RMS would have on their lifecycle. The record also shows that, during discussions, the agency confirmed with the awardee that existing RMS with problems would be repaired prior to or in conjunction with being upgraded, at no cost to the agency. Finally, the evaluation shows that, in discussing the awardee's upgraded approach, the agency concluded that "some risk" existed, but that the proposal was still considered technically acceptable. Although the protester disagrees with this assessment, it has not shown it to be unreasonable.
The protester next argues that the awardee's proposal posed risk because repairs to existing RMS could potentially interfere with the awardee's ability to meet the agency's delivery schedule, and that the agency failed to consider this risk. The solicitation contains a detailed delivery schedule which specifies deadlines for the delivery of new or upgraded units. The awardee's proposal did not take any exception to this requirement, and the protester has not cited any statement in the awardee's proposal that it will not comply with the delivery deadlines. The statement in the awardee's proposal requesting to upgrade repaired RMS in future years (as quoted by the protester above) is only a statement of preference and does not negate or take exception to the delivery schedule set forth in the RFP. GAO declines to find that the awardee's statement of preference rendered its proposal unacceptable.
Finally, Measurements argues that the agency improperly failed to consider the fact that the awardee's warranty would cover only the upgraded units, and would not cover the existing RMS prior to upgrade. What the protester seems to ignore, however, is that Measurements' warranty would similarly not cover the risks associated with the existing units prior to upgrade, and all potential awardees would be held to the same delivery schedule. Therefore, if an existing unit were to malfunction prior to being replaced under the delivery schedule set forth in the solicitation, the unit would not be covered by the warranty offered by either offeror. Although the protester argues that upgrading RMS will take more time than replacing RMS, and therefore the agency will be forced to use the unrepaired existing units for a longer period of time under the awardee's proposed approach, the protester has not shown that this risk is so high as to render the awardee's proposal technically unacceptable. The protest is denied.
4. Birdstrike Control Program, B- 403967.2, August 3, 2011
Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: Technical Evaluation
General Counsel P.C. Highlight: Mere disagreement with the agency's evaluation is not sufficient to call it into question.
Birdstrike Control Program (BCP) protests the issuance of a purchase order, by the Department of the Air Force, under a request for quotations (RFQ), for wildlife control services at RAF (Royal Air Force) Lakenheath and RAF Mildenhall, United Kingdom (UK).
The RFQ was issued for wildlife control services for Air Force units operating airfields at RAF Lakenheath and RAF Mildenhall, UK. Award was to be made on a lowest-priced, technically acceptable basis. With regard to the technical evaluation of quotations, the RFQ provided that the evaluators would assign ratings of acceptable or unacceptable with regard to six subfactors: (1) transition plan, (2) mission support plan, (3) qualification, (4) management procedures, (5) past experience, and (6) training. The RFQ further provided that if a quotation received a rating of unacceptable with regard to any one subfactor, the entire quotation would be rated unacceptable.
The RFQ included quotation preparation instructions that advised, as is pertinent here, that firms were required to include a list of all hazardous materials to be used during contract performance. With regard to technical acceptability, the RFQ provided that missing required documentation could form the basis for the assignment of an unacceptable rating. With regard to evaluation of technical subfactor 2, mission support plan, the RFQ provided that quotations had to be comprehensive and complete and "must fully address your comprehensive FOD [foreign object damage] control plan, Equipment/Facility management, Birdstrike response and training, HAZMAT materials and management of resources."
Three quotations were received by the due date, including a quotation from BCP. The technical evaluation team (TET) found BCP technically unacceptable with regard to four evaluation subfactors: mission support team, qualification, management procedures, and training.
BCP challenges the TET's finding of unacceptability with regard to each of the four technical evaluation subfactors identified in the TET Report. GAO states that in reviewing a protest challenging an agency's technical evaluation, it will not reevaluate the quotations; rather, it will examine the record to determine whether the agency's evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. Mere disagreement with the agency's evaluation is not sufficient to call it into question.
The record shows that BCP was found technically unacceptable under the mission support plan subfactor for failing to discuss the firm's handling of HAZMAT materials. According to the protester, this finding was unreasonable because it indicated in its quotation that it did not intend to use HAZMAT materials in performing the contract, and, therefore, it was not required to include information in its quotation relating to HAZMAT materials.
The record shows that the agency found inconsistencies in BCP's quotation that gave rise to a concern that the firm had failed to meet the RFQ requirement for information relating to its potential use of HAZMAT materials. On the one hand, BCP's quotation represented that it did not intend to use HAZMAT materials in performing the contract, and therefore it included no information relating to HAZMAT materials. However, the record shows that the agency evaluators were concerned because, although BCP had represented that it would not use HAZMAT materials, some of the techniques identified in its quotation clearly called for the use of such materials. The record thus shows that, because of this inconsistency in its quotation, the evaluators rated BCP's quotation unacceptable under the mission support plan subfactor.
BCP asserts that the language in its quotation relied on by the TET concerning the methods BCP would employ did not indicate that BCP would actually use those methods, but rather was merely an indication that BCP was familiar with these methods. GAO finds that the quotation was unequivocal in representing that BCP "is familiar with and utilizes all forms of wildlife active and passive management techniques . . . ." The plain meaning of this language, as reasonably understood by the evaluators, is that BCP intended to utilize the techniques listed; including those that the evaluators found would involve HAZMAT materials. GAO therefore concludes that the agency's evaluators acted reasonably in finding that BCP's quotation was unacceptable for failing to include information relating to its handling of HAZMAT material in light of the plain language of the firm's quotation.
BCP further asserts that the particular methods cited by the TET--pyrotechnics, scaring cartridges, and repellants--do not involve use of hazardous materials. BCP relies on Air Force guidelines, including AFI 32-7086, Hazardous Materials Management, listed in the RFQ, which provide that the definition of hazardous materials does not include munitions or hazardous waste. The agency, however, points out that the definition of hazardous materials in AFI 32-7086 is not controlling because the RFQ provided that, if compliance with the Air Force guidance conflicts with compliance with country-specific governing standards, the RFQ required compliance with the country-specific provisions. The agency notes that Clause 1.28.1 of the performance work statement (PWS), "Control and Handling of Hazardous Materials," makes the contractor responsible for compliance with the UK Health and Safety at Work Act of 1974 and the UK Environmental Protection Act of 1990. BCP has not submitted any information to show that the agency's evaluators are incorrect regarding what constitutes hazardous materials under the UK statutes and regulations, but only generally disagrees with the agency's position. Such disagreement, without more, does not provide a basis for GAO to find the agency's evaluation unreasonable. The protest is denied.
