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1. Ocean Services, LLC, B-404690, April 6, 2011
Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest sustained
Keywords: Proposal Extension
General Counsel P.C. Highlight: Where a proposal or bid has expired, GAO has recognized that an offeror or bidder may extend its acceptance period and revive its proposal or bid if doing so would not compromise the integrity of the competitive bidding system.
Ocean Services, LLC protests the refusal of the Department of the Navy, Military Sealift Command (MSC) to consider its expired proposal under a request for proposals (RFP).
The MSC issued the RFP, as a total small business set-aside, to solicit proposals for the operation and maintenance of the ocean survey vessel (OSV) BOLD. The RFP advised offerors that award was to be made to the lowest-priced, technically acceptable proposal. The original closing date for proposals was April 26. The agency issued three amendments that revised the solicitation, answered questions regarding the solicitation, and ultimately extended the due date for receipt of proposals to June 9.
On June 23, the apparent awardee was announced and the offerors were informed by the agency that any challenges concerning the small business size status of the apparent awardee must be filed by June 30. Two offerors, including Ocean, timely challenged the size status of the apparent awardee. On August 2, the agency requested that Ocean and the other offerors extend the acceptance period of their proposals. Agency On that same date, Ocean extended the acceptance period of its proposal to September 30. On September 17, the Small Business Administration determined that the apparent awardee was other than small for purposes of this procurement. On September 24, the agency again requested that Ocean and the other offerors extend the acceptance period of their proposals through November 14, and on that same date Ocean again provided the requested extension. On September 30, the agency extended the incumbent's contract until February 12, 2011. On November 8, 2010, the agency again requested the offerors to extend the acceptance period of their proposals through Saturday, December 18, and, on that same date the offerors, including Ocean, provided the requested extension. On December 10, the agency issued a market survey for the operation and maintenance of the OSV BOLD. The responses to the market survey were due on December 20. On Monday, December 13, the agency again requested the offerors, including Ocean, to extend the acceptance period of their proposals through February 12, 2011.
Ocean asked the agency for an explanation of the extension and the agency merely replied that Ocean's offer is valid through December 18 and a request for extension could be submitted by email. On December 20, Ocean responded to the market survey and extended its proposal through February 28, 2011. The agency replied that Ocean's proposal would no longer be considered for award.
Ocean contends that the agency should allow it to revive its offer because this would neither prejudice the other offerors nor compromise the integrity of the competitive process. GAO states that where a proposal or bid has expired, GAO has recognized that an offeror or bidder may extend its acceptance period and revive its proposal or bid if doing so would not compromise the integrity of the competitive bidding system. Circumstances that compromise the system's integrity are where the bidder offered an acceptance period shorter than other bidders (if the solicitation afforded bidders or offerors the option to offer less than a standard time frame that otherwise would be presumed to apply), or where the bidder expressly or impliedly refused a request to extend its bid and later granted an extension as its own interests dictated; a bidder's or offeror's limitation of the government's legal ability to accept the bid or proposal in a manner at variance with the terms offered by other competitors limits the bidder's or offeror's exposure to marketplace uncertainties and reduces that bidder's risk.
Ocean did not decline to extend the acceptance period for its proposal, which expired on a Saturday, but extended it on the following Monday morning. GAO has recognized in such circumstances that even where other bidders or offerors had extended their proposals as required, there is no prejudice to the other bidders or offerors, or to the competitive system, by allowing the expired bid or proposal to be revived. Reviving the proposal on the morning of the first business day following its expiration negates any argument that Ocean compromised the procurement process by avoiding market fluctuations to which other offerors were exposed. The protest is sustained and GAO recommends that MSC accept revival of Ocean's proposal.
2. Andritz Hydro Corp., B-404642, March 21, 2011
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied
Keywords: Proposal Evaluation
General Counsel P.C. Highlight: In reviewing a protest against an agency's evaluation of proposals, GAO will not reevaluate proposals but instead will examine the record to determine whether the agency's judgment was reasonable.
Andritz Hydro Corp. protests the evaluation of its proposal, and the award of a contract under a request for proposals (RFP), issued by the Corps of Engineers.
The RFP contemplated the award of a fixed-price contract for the design, manufacture, installation, commissioning and testing of eight digital excitation systems, which are used to regulate and assist in the production of electricity by large generators. Award was to be made to the firm that submitted the proposal determined to represent the best value to the government considering technical factors and price. The RFP, as amended, provided for the evaluation of the following four technical factors, and related subfactors: (1) experience/ personnel/ schedule (subfactors for company experience, installation supervisor experience, commissioning engineer experience, and project schedule); (2) past performance (subfactors for site workmanship, customer satisfaction, schedule, and budget); (3) technical data (subfactors for drawings and sketches, descriptive literature, and maintainability); and (4) utilization of small business.
After Andritz's proposal received a lower technical rating, award was made to another offeror. Andritz protests the reasonableness of the agency's evaluation of its proposal under the experience/personnel/schedule and technical data factors. Under GAO case law, the evaluation of an offeror's proposal is a matter within the agency's discretion. In reviewing a protest against an agency's evaluation of proposals, GAO will not reevaluate proposals but instead will examine the record to determine whether the agency's judgment was reasonable.
Andritz challenges the agency's conclusion that the experience of its personnel, as demonstrated by the resumes for its proposed installation supervisor and commissioning engineer, was limited. GAO's review of the record supports the reasonableness of the agency's evaluation. In short, while Andritz contends that its personnel have numerous years of general electrical experience that should be considered relevant and given additional credit, the record confirms that the resumes at issue in Andritz's proposal provided general assertions of past electrical work, and thus did not specifically implicate the more specialized exciter system installation and commission work to be performed here to justify a higher technical evaluation rating.
GAO also notes that the agency's concerns about Andritz's proposed schedule for performance, which led to a "marginal" rating under the schedule subfactor, are also well-founded. Specifically, each evaluator noted a serious weakness with Andritz's proposed schedule in connection with its replacement of two related excitation units occurring four months apart. Under Andritz's approach, when an old analog unit was replaced with a new digital unit, the new unit would interface with an old companion analog exciter for a 4‑month period, until that unit was also replaced. The evaluators were concerned with this approach since Andritz did not identify or address issues of potential system instability from reactive power sharing between the units in the event the two different units are not compatible during the four-month delay between the replacement installations.
Lastly, Andritz contends that its proposal should have received higher than a "satisfactory" rating under the technical data evaluation factor. The agency report explains that the summary statement in the award notice indicating that Andritz failed to achieve a more favorable proposal rating because of the blank drawing pages was not an accurate reflection of the actual evaluation of the proposal. The agency explains, and the record confirms, that, as noted in each evaluator's worksheet for the drawings and sketches evaluation subfactor, Andritz's drawings were received, reviewed, and were considered complete, but only identified as satisfactory for meeting requirements--no appreciable strengths (or betterments, as were invited by the RFP) were identified to support a higher technical rating. The record further shows that the evaluators noted particular weaknesses with regard to the protester's drawings that have not been refuted by Andritz. Thus, the protester's suggestion that it should have received higher than a satisfactory rating under the drawings and sketches subfactor is not supported by the record. The protest is denied.
3. Technology Concepts & Design, Inc., B-403949.2; B-403949.3, March 25, 2011
Link: GAO Opinion
Agency: Department of State
Disposition: Protest sustained
Keywords: Documentation of Evaluation
General Counsel P.C. Highlight: Where an agency fails to provide documentation of its evaluation, it bears the risk that there may not be adequately supporting rationale in the record for GAO to conclude the agency had a reasonable basis for its evaluation and selection decision.
Technology Concepts & Design, Inc. (TCDI) protests the issuance of a task order by the Department of State under a task order request for proposals (RFP) for technical support to the agency's Bureau of Verification, Compliance, and Implementation, Office of Verification Operations (VCI/VO).
The RFP provided for the issuance of a labor-hour, performance-based task order under the General Services Administration's (GSA) Commerce Information Technology Solutions - Next Generation (COMMITS) government-wide acquisition contract to provide information technology support services to VCI/VO. The solicitation stated that the task order would have a base performance period of a year with four option years, and provided for a 30-day transition period. The RFP described a broad range of support services that would be provided, including operation and management of computer facilities and networks; software design, development and support; analytical, technical and subject matter expertise on IT requirements in support of arms control related subjects; cyber security; and operation of help desks. In this regard, the RFP provided, as a guideline, an overall operational level of support and the current staffing model (identified by labor category and full-time equivalents (FTE) assigned to that category). Offerors were advised to formulate staffing plans based on their best business judgment.
Following an initial protest by TCDI and offer, by the agency, to take corrective action, the TEP reevaluated proposals and provided a new evaluation report to the contracting officer. The TEP ultimately concluded that the proposals of the awardee and TCDI met the basic requirements of the RFQ, but determined that the awardee's proposal was technically superior due to the number of strengths identified in the proposal compared to the other proposals. As a result, the TEP recommended that the task order be issued to the awardee. The agency also evaluated the offerors price proposals and the awardee offered the lowest price of $46,067,061. The contracting officer, who was the source selection authority, disagreed with the TEP's conclusion that the awardee's proposal was technically superior. Instead, the contracting officer determined that, based upon their overall green ratings, the awardee's, TCDI's, and another offeror's proposals were technically equal. The task order was issued to the awardee on the basis of that firm's lower price.
TCDI broadly objects to the evaluation of its and the awardee's proposals. In this regard, TCDI challenges many of the weaknesses evaluated in its proposal. TCDI also challenges the agency's price evaluation, asserting the agency failed to assess the realism of the awardee's low price.
GAO states that in reviewing protests of alleged improper evaluations and source selections, even in a task order competition as here, it does not reevaluate proposals, but rather it examines the record to determine whether the agency's judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement laws and regulations. In order for GAO to review an agency's evaluation judgment, an agency must have adequate documentation to support its judgment. GAO does not limit its review to contemporaneous evidence, but considers all the information provided, including the parties' arguments, explanations, and documentation prepared in response to protest contentions. While GAO considers the entire record, including the parties' later explanations and arguments, it will accord greater weight to contemporaneous evaluation and source selection material than to arguments and documentation prepared in response to protest contentions. Where an agency fails to provide documentation of its evaluation, it bears the risk that there may not be adequately supporting rationale in the record for GAO to conclude the agency had a reasonable basis for its evaluation and selection decision.
GAO finds that although State contends that TCDI's work on a prior project was not timely completed, the evaluation does not address TCDI's explanation as to why the firm was not responsible for problems in the database. The agency also does not address in any fashion TCDI's arguments with respect to the assessed concerns with other aspects of its performance. In short, State has failed to provide either contemporaneous documentation or subsequent explanation supporting its assessment of this weakness in TCDI's proposal. Accordingly, GAO finds from the record that State did not have a reasonable basis for the assignment of this weakness in TCDI's proposal.
Next, TCDI challenges the agency's assessment of a weakness under the corporate experience subfactor that TCDI's proposal lacked "depth and breadth of experience relevant to working within the Federal sector" as compared to other offerors' proposals. GAO finds that the agency does not identify where in the RFP offerors were notified that the depth, breadth, and scope of an offeror's relevant work for other federal agencies was a requirement. Moreover, GAO finds that the agency's evaluation record does not demonstrate that the assignment of this weakness was reasonable. State does not explain why TCDI's experience as the incumbent did not provide sufficient experience working with other agencies, such as Commerce and the Department of Defense.
TCDI also challenges State's evaluation of its proposal under the personnel qualifications/management factor, where it received a rating of green. Although the TEP noted that TCDI, as the incumbent, had nearly all staff cleared and ready to immediately perform, it also noted that TCDI had failed to propose any teaming partner staff. Specifically, the TEP stated that, although TCDI's proposal stated that the firm had sufficient access to staff through its teaming partner to meet any perceived shortfalls related to certification or expertise, TCDI did not specifically offer any staffing from its teaming partner. State does not refute TCDI's arguments, nor does it provide an explanation for the apparent inconsistency between the weakness assigned under one evaluation factor and the strength assigned in a subfactor. Rather, State merely notes that TCDI's proposal was rated green under this evaluation factor. GAO finds that there is no basis to find State's evaluation to be reasonable, given the agency's failure to provide any documentation or support for its evaluation. The protest is sustained.
4. CAE USA, Inc., B-404625, March 16, 2011
Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied
Keywords: Past Performance
General Counsel P.C. Highlight: The evaluation of past performance, including the agency's determination of the relevance and scope of an offeror's performance history, is a matter of agency discretion, which GAO will not find improper unless unreasonable or inconsistent with the solicitation's evaluation criteria. A protester's mere disagreement with the agency's evaluation conclusions does not establish that an evaluation was unreasonable.
CAE USA, Inc. (CAE) protests the award of a contract under a request for proposals (RFP), issued by the Department of the Air Force, for training support for the C-17 aircraft.
The RFP contemplated the award of a fixed‑price, indefinite-delivery/indefinite-quantity (ID/IQ) contact for a five-year base period with an option to extend the contract for two additional one-year terms. The RFP provided that award would be made to the offeror whose proposal represented the best value to the government using a technically acceptable, performance/price tradeoff procedure.
The solicitation advised that the evaluation of past performance would be based on information provided by the offeror in its proposal, as well as information contained in the Contractor Performance Assessment Reporting System (CPARS), and data obtained by the government from other sources. The RFP advised that if the lowest-price, technically acceptable offer received a performance confidence assessment rating of substantial confidence, and then that offeror would receive the award. If the lowest-priced, technically acceptable offer did not receive a performance confidence assessment rating of substantial, then the RFP contemplated that the agency would perform a tradeoff between past performance and price to make a best value determination.
Past performance was evaluated by a performance confidence assessment group (PCAG). The PCAG determined that the relevant contracts identified by CAE did not demonstrate a good representation of the company as a prime contractor on efforts of similar magnitude. As a result, the PCAG reviewed five additional contracts with relevance to training systems where CAE was the prime contractor. In addition, the PCAG considered information obtained from CPARS, as well as questionnaires and interviews with government program managers, the administrative contracting officer, procurement contracting officers, and contractors. Based on this information, the PCAG assessed relevancy and quality ratings for each of the identified past performance contracts under each of the technical acceptability subfactors and cost/price factor, and used these ratings to assess an overall performance confidence assessment rating for CAE's proposal of satisfactory confidence.
During two rounds of discussions, the agency twice provided CAE with detailed analysis of the agency's past performance evaluation in the form of briefing slides and evaluation charts. The evaluation charts provided to CAE identified each of the contracts for CAE and its major subcontractors that the PCAG evaluated, including the five additional contracts not identified by CAE in its proposal. The charts also included the relevancy and quality ratings assigned to each contract under each of the technical acceptability subfactors and cost/price factor, the performance confidence assessment ratings assigned to those subfactors and factor, and the resulting performance confidence assessment rating for the overall proposal. The charts show that a number of the contracts were determined to be only somewhat relevant or not relevant to the technical acceptability factors.
Narrative information accompanying the charts informed CAE that its proposal received an overall performance confidence assessment rating of satisfactory confidence. CAE was further advised that this overall satisfactory confidence rating was based on the proposal's receipt of only satisfactory confidence ratings for three of the five technical acceptability factors and an unknown confidence rating for the cost/price factor. CAE also was informed that, although the firm proposed to perform a certain percent of the effort here as the prime contractor, the agency was unable to find evidence that CAE had performed as a prime on efforts of similar magnitude. In response to discussions, CAE did not challenge any of the evaluation ratings (other than to question the unknown confidence rating for cost/price), or make any revisions in its final proposal submission to address the agency's concerns. At the conclusion of discussions, CAE's proposal was found to be technically acceptable. As noted above, CAE's proposal received a rating of satisfactory confidence for past performance, and the firm proposed the lowest price of $206 million. The source selection authority (SSA) reviewed the evaluation results and, because the lowest-priced offer did not receive a substantial confidence rating, he performed a past performance/price tradeoff. The SSA noted that CAE's satisfactory confidence rating was due to the fact that many of its contracts were only somewhat relevant, CAE's experience as a subcontractor was on contracts of a smaller magnitude than required here, and the firm had only limited experience as a prime contractor in the relevant areas. In contrast, the awardee's substantial confidence rating was based on the firm's successful performance as a prime contractor on very similar efforts to the RFP here. The SSA determined that the awardee's superior past performance was worth the additional $17 million, and he selected the awardee for award.
CAE challenges various aspects of the agency's past performance evaluation, and alleges that the performance/price tradeoff and award determination was unreasonable. GAO states that the evaluation of past performance, including the agency's determination of the relevance and scope of an offeror's performance history to be considered, is a matter of agency discretion, which it will not find improper unless unreasonable or inconsistent with the solicitation's evaluation criteria. A protester's mere disagreement with the agency's evaluation conclusions does not establish that an evaluation was unreasonable.
CAE's protest predominantly attacks the agency's relevancy determinations of the firm's past performance. For example, CAE complains that the agency discounted CAE's subcontractor performance which led to lower relevancy ratings, considered contracts that were not identified by CAE in its proposal and then found some of them to be only somewhat relevant, and made other errors in evaluating relevant past performance. CAE then complains that these erroneous relevancy determinations were the determining factor for award. Based upon GAO's review of the record, GAO finds that each of CAE's challenges lack merit.
CAE contends that the agency unreasonably discounted two of its contacts because CAE performed the work as a subcontractor, and that the agency further distorted the evaluation results by considering five less relevant contracts where CAE was the prime contractor even though CAE did not identify these contracts in its proposal. However, the record shows that the agency reasonably evaluated CAE's past performance in light of the role it was proposed to perform here. To the extent the protester now disputes the agency's findings as to the relevancy of these contracts, GAO is unpersuaded by its arguments, especially given that CAE failed to dispute any of the agency's relevancy findings during discussions.
CAE also argues that the agency's past performance evaluation "completely ignore[d]" the program management experience of one of CAE's proposed subcontractors. CAE contends that the subcontractor's "very high ratings" in this area should have resulted in CAE receiving a higher performance confidence assessment rating in this area. As recognized by the agency, CAE did not propose to use any subcontractors in the program management role; rather, that role was reserved to CAE. GAO finds the agency's decision not to give weight to the subcontractor's past performance in program management to be unobjectionable. In sum, based on GAO's review of the record and considering all of the protester's arguments, GAO finds the agency's evaluation of past performance, including the relevancy determinations, to be reasonable and consistent with the RFP. The protest is denied.
5. A-Ability Medical Equipment, Inc.--Costs, B-403256.3, April 4, 2011
Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Request denied
Keywords: Reimbursement of Protest Costs
General Counsel P.C. Highlight: Generally, when an agency takes corrective action before the due date for its report, GAO regards such action as prompt and will not recommend reimbursement of costs.
A-Ability Medical Equipment, Inc. requests that it be reimbursed the costs of filing and pursuing protests of the award of a contract by the Department of Veterans Affairs (VA) under a solicitation for durable medical equipment.
After the VA awarded the contract at issue to another offeror A-Ability protested, arguing that the awardee was neither a service disabled veteran-owned small business (SDVOSB) nor capable of performing, and that A-Ability was more technically qualified that the awardee, given the protester's superior certification, employee training, and past performance. Prior to the due date for the agency report, the agency informed GAO that it intended to take corrective action, to include, at a minimum, conducting a new evaluation and making a new award decision. Based on the agency's proposed corrective action, GAO dismissed the protest as academic. Following corrective action, the agency again made award to the previous awardee. A-Ability protested, repeating the three allegations from its prior protest. Prior to the due date for the agency report, the agency informed GAO that it intended to cancel the solicitation, clarify its requirements and evaluation criteria, and issue a new solicitation. Since the agency was canceling the solicitation, GAO dismissed the second protest as academic.
A-Ability requests that GAO recommend that the agency pay the protest costs associated with both protests, arguing that the VA's corrective action in response to the first protest failed to address a clearly meritorious protest allegation, and that the agency's failure to take appropriate corrective action required the protester to file a second protest. GAO states that where a procuring agency takes corrective action in response to a protest, GAO may recommend that it reimburse the protester its protest costs where, 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. Generally, when an agency takes corrective action before the due date for its report, GAO regards such action as prompt and will not recommend reimbursement of costs. GAO has recognized, however, that the mere promise of corrective action, without reasonably prompt implementation, has the obvious effect of circumventing the goal of the bid protest system for the economic and expeditious resolution of bid protests. Thus, where an agency fails to implement the promised corrective action, or implements corrective action that fails to address a clearly meritorious issue raised in an initial protest, such that the protester is put to the expense of subsequently protesting the very same procurement deficiency, the agency's action has precluded the timely, economical resolution of the protest.
Here, there is no basis to conclude that the agency has unduly delayed taking corrective action in response to a clearly meritorious protest. In response to the first protest filed by A-Ability, the agency promptly indicated that it would take corrective action. To the extent A-Ability maintains that its protest costs are justified because the agency has taken "corrective action" in response to A-Ability's second protest, A-Ability's argument is misplaced. A-Ability's second protest was not rendered academic based on the agency's representation that it would correct the same evaluation issues raised in A‑Ability's first protest. Rather, the protest was rendered academic for reasons not directly related to the protest issues raised by A‑Ability--the agency's decision to cancel and re-issue the solicitation in order to clarify its requirements and evaluation criteria. Since A-Ability's second protest was rendered academic for reasons not directly related to the protest allegations, there was no corrective action; that is, there was no indication that the agency recognized the merits of the protest and was taking action to remedy the impropriety identified by the protester. The request is denied.
