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1. Bestcare, Inc., B-403585, November 23, 2010
Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest denied.
Keywords: FedBizOpps; failure to solicit incumbent contractor
General Counsel P.C. Highlight: GAO will not sustain a protest challenging an agency's failure to solicit a successfully performing incumbent unless the record shows that adequate competition resulting in reasonable prices was not achieved, or there is conclusive evidence that the agency deliberately excluded an incumbent from the competition.
Bestcare, Inc. (Bestcare), an incumbent contractor providing home healthcare for the VA, protests the award of contracts by the Department of Veterans Affairs (VA), claiming that the VA intentionally failed to notify it of the VA's solicitation of the follow-on contract. Bestcare admits that the VA published the Request for Proposals (RFP) in FedBizOpps in a timely fashion.
GAO states that it will not sustain a protest challenging an agency's failure to solicit a successfully performing incumbent unless the record shows that adequate competition resulting in reasonable prices was not achieved, or there is conclusive evidence that the agency deliberately excluded an incumbent from the competition. Here, the VA received 12 proposals in response to the published RFP, which the GAO says is more than sufficient to achieve adequate competition and to support a finding of price reasonableness.
Bestcare also argues that it was improperly excluded because the RFP was not available through the VA website and it had not been notified by the VA of the RFP publication in FedBizOpps, which it describes as "an outlet which is rarely, if ever, used for public bidding." In its decision denying the protest, GAO notes that FedBizOpps is "the currently designated Governmentwide Point of Entry (GPE), 'the single point where Government business opportunities greater than $25,000, including synopses of proposed contract actions, solicitations, and associated information, can be accessed electronically by the public.' FAR § 2.101." Wherever agencies are required to publicize notice of a proposed contract action, they must transmit a notice of that action to the GPE. Beyond these requirements, there are no further requirements to individually notify potential offerors, or to post notice of a contract action on an agency's own website. The protest is denied.
2. DRS ICAS, LLC, B-401852.4; B-401852.5, September 8, 2010
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest sustained.
Keywords: Technical Weaknesses; Technical Evaluation
General Counsel P.C. Highlight: In a challenge to the Agency's evaluation, the GAO will not substitute its own judgment for that of the agency, but will question the agency's conclusions where they are inconsistent with the solicitation criteria, undocumented, or not reasonably based.
DRS ICAS, LLC protests the issuance of a delivery order under a request for proposals (RFP), issued by the Department of the Army (Army), for a man-portable aircraft survivability trainer (MAST) system.
The solicitation sought proposals to develop and provide MAST units, which are intended to allow users to simulate threats posed by man-portable air defense systems (MANPADS). The RFP was restricted to vendors under a multiple-award indefinite-delivery/indefinite-quantity contract (ID/IQ), known as the Program Executive Office for Simulation, Training and Instrumentation Omnibus Contract II. The solicitation provided for the issuance of a delivery order with a one-year base period and four one-year options. The RFP stated that the delivery order would be based on fixed-unit prices for the MAST units and associated equipment, along with certain time-and-materials contract line items (CLINs), and that the agency could order up to 60 units per year.
The solicitation advised offerors that proposals would be evaluated based on five factors, including technical approach, which had three subfactors, technology insertion and open architecture, target sensitivity, and MILES integration. DRS protested the Army's award of the contract twice and twice the Army took corrective action in response to the protests.
DRS ultimately challenges the Army's evaluation of its technical proposal, and the agency's evaluation of offerors' prices.
GAO states that the evaluation of an offeror's proposal is a matter within the agency's discretion. A protester's mere disagreement with the agency's judgment in its determination of the relative merit of competing proposals does not establish that the evaluation was unreasonable. 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 and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. While GAO will not substitute its judgment for that of the agency, it will question the agency's conclusions where they are inconsistent with the solicitation criteria, undocumented, or not reasonably based.
DRS argues that the agency unreasonably assessed a weakness in its proposal under the technology insertion and open architecture subfactor, based on the DRS's proposed use of USB ports. The Army contends that the plain language of the solicitation prohibited the use of any USB ports. GAO, however, thinks that the plain language of the solicitation provision does not support the agency's interpretation that all USB ports are prohibited. Based on the plain language of the solicitation, GAO thinks that the protester's interpretation of the RFP as permitting keyed USB ports is reasonable, and that the agency's interpretation of the RFP as barring use of all USB ports is unreasonable. For that reason, the GAO sustains this protest ground.
Next, DRS argues that the agency unreasonably assessed a weakness in its proposal under the target sensitivity subfactor, based on DRS's failure to address the use of focal plane array target scanning technology in its proposed simulation of SA-16 and SA-18 threats. The Army stated that "[t]he offeror provides no detail on how to simulate the target sensitivity of the SA-16 and SA-18 that use focal plane arrays which is outside of the scope of the offeror's proposed solution." During the hearing, the SSEB Chair conceded that this evaluation was in error, because he was misinformed by a technical evaluator as to the technology used by SA-16 and SA-18 missiles. To the extent that the agency's assessment of weakness here relied upon its conclusion that DRS's proposal failed to address focal plane technology, GAO finds that the evaluation was unreasonable.
DRS argues that the agency unreasonably assessed a weakness in its proposal under the target sensitivity subfactor, based on its failure to discuss a certain scan technology, and the agency's belief that the protester would address this requirement only through a future upgrade.
The RFP required offerors to address target sensitivity requirements, and stated that the agency would evaluate "the Offeror's approach to satisfying the ability to change the target tracking sensitivity and its correlation to threat group parameters . . . within the specifications document." Although the certain scan technology is not discussed in the RFP, both the performance specifications and the RFP state that SA-7, SA-14, SA-16, and SA-18 missiles are "popular" threats.
Based on GAO's review of the plain language of DRS's proposal, it does not think that the Army's interpretation is reasonable. To the extent that the agency believed that DRS's proposal stated that its technology would simulate only an SA‑7 missile, GAO does not think that the record supports this conclusion.
Further, GAO found that the SSEB Chair's testimony during a hearing indicated that the agency's concerns with DRS's proposal were beyond those contemplated by the RFP's evaluation factors. Agencies are required to evaluate proposals based solely on the factors identified in the solicitation, and must adequately document the bases for their evaluation conclusions. While agencies properly may apply evaluation considerations that are not expressly outlined in the RFP where those considerations are reasonably and logically encompassed within the stated evaluation criteria, there must be a clear nexus between the stated criteria and the unstated consideration.
The protest is sustained.
3. Marine Hydraulics International, Inc., B-403386; B-403386.2, November 3, 2010
Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest sustained.
Keywords: Cost Realism Analysis
General Counsel P.C. Highlight: GAO will review an agency's cost realism analysis for reasonableness.
Marine Hydraulics International, Inc. (MH) protests the award of a contract under a request for proposals (RFP), issued by the Department of the Navy, for executing, planning, maintenance, repair and alteration to a number of LPD 17 Class ships. LPD 17 class ships are amphibious transport ships that embark, transport, and land elements of a landing force.
The RFP contemplated the award of a cost plus award and incentive fee, multi-ship, multi-option contract for a base year, with four one-year options, for up to 10 ship "availabilities" (an availability is an interval of time during which a ship is made available to the contractor for performance of required work). Because the precise work during each availability is unknown in advance, the RFP included a notional work package to which offerors were to respond with technical proposals and proposed cost/fee estimates. Award was to be made to the offeror submitting the proposal deemed to be the "best value" considering evaluated cost and several non-cost factors.
GAO states that where, as here, an agency is evaluating proposals for the award of a cost reimbursement contract, an offeror's proposed costs are not dispositive since, regardless of the costs proposed, the government will be liable to pay the contractor its allowable and allocable costs. Consequently, an agency must perform a cost realism evaluation to determine the extent to which an offeror's proposed costs are realistic for the work to be performed. Such an evaluation involves independently reviewing and evaluating elements of each offeror's cost (and making adjustments thereto) to determine whether the proposed cost elements are realistic for the work to be performed, reflect a clear understanding of the requirements, and are consistent with the methods of performance and materials described in the offeror's technical proposal. GAO will review an agency's cost realism analysis for reasonableness. GAO finds that the agency's evaluation of MH's proposed cost was unreasonable.
The protester asserts that the agency improperly increased its proposed cost to account for the cost of security guard services for ship's force parking areas; the RFP provided an estimated 3,780 hours per availability for ship's force parking. In its second FPR, MH proposed a deviation from this aspect of the requirement, explaining that it recently acquired a street dividing two parcels comprising its facility. MH asserts that the agency improperly added the cost of providing 3,780 hours of security guard services per availability (as well as the cost of certain materials) to its evaluated cost.
GAO states that the agency unreasonably added the cost of security guard services for ship's force parking to MH's proposed cost. As noted, MH's final proposal revision (FPR) unequivocally proposed to provide ship's force parking inside the fenced perimeter of MH's facility at no direct cost to the government, and fully explained the basis for this approach. While MH's practice under prior similar contracts might have been relevant, the FPR essentially explained why MH's prior practice was not relevant. The agency never determined that this explanation was unpersuasive or unrealistic in any way, and even now has not established that there was reason to question the basis for MH's indirect cost approach. GAO concludes that the agency has failed to establish a reasonable basis for increasing MH's evaluated cost to include security guard services for ship's force parking as a direct cost.
MH next asserts that the agency improperly increased its evaluated cost to account for certain fire watch services (fire watch services must be provided whenever "hot work" such as welding, or any other fire or spark producing work, is being performed).
Fire watch hours were calculated as a percentage of production hours under the contract. GAO agrees with MH that temporary services and pumping and cleaning should not have been included in the fire watch services calculation. GAO agrees with MH that there is no hot work involved in temporary services. Temporary services are confined to facilities-related work, such as the installation of temporary gangways, landing platforms, piping, lighting, handrails and the like, to enable ready access to the ship for workers and their tools and supplies. Again, the agency has not persuasively shown that this work could involve hot work. Thus, GAO concludes that it was unreasonable for the agency to include these hours in the production hour basis used in calculating the appropriate number of fire watch services hours that would be required.
GAO recommends that the agency reevaluate proposals in a manner consistent with the discussion above. Following reevaluation the agency should make a new source selection decision. The protest is sustained.
4. Triad Logistics Services Corporation, B-403726, November 24, 2010
Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest dismissed.
Keywords: In-sourcing
General Counsel P.C. Highlight: GAO is authorized to decide bid protests concerning an alleged violation of a procurement statute or regulation. It does not have authority to consider alleged violations of other statutes that are not procurement statutes or that do not bear directly on federal agency procurements
Triad Logistics Services Corporation (Triad) protests the Department of the Air Force's decision to convert to in-house performance vehicle operations and maintenance services at Columbus Air Force Base, Mississippi, previously performed under Triad's contract No. FA3022-07-C-0001.
The contract awarded to Triad in 2006 provided for a one-year base period, with services to commence on October 1, 2006, and included four one-year options. Prior to expiration of the third option period, the Air Force advised Triad that the agency "will initiate the process of in-sourcing" performance of the vehicle operations and maintenance services. Triad submitted a request under the Freedom of Information Act (FOIA) for documents concerning the agency's determination to in-source the requirement, including documents relating to a comparison of the costs of continuing performance by Triad and the cost of in-house performance. Triad received a number of documents in response to its FOIA request, including the agency's July 21 business case analysis for in-sourcing, an attachment to which indicated that in-house performance would be approximately 10.14% less expensive than contract performance.
Triad challenges the determination that in-house performance would be less expensive. However, Triad's protest fails to state a valid basis of protest. GAO has considered a similar protest challenging the agency's decision to cancel a solicitation to perform work in-house on the basis that the cost comparison performed by the agency violated DOD's in-sourcing guidance (as well as that the requirement was not one given priority under section 2463). GAO held that the protest failed to state a valid basis of protest, finding that section 2463 does not require a cost comparison and that, since the cited guidance issued pursuant to section 2463 was only internal DOD policy, the assertion that the agency did not adhere to that policy guidance is not a basis for challenging the agency's actions.
Triad asserts that GAO's review of the cost comparison nevertheless is authorized by 10 U.S.C. sect. 129a (2000), General Personnel Policy. GAO disagrees. Under the Competition in Contracting Act of 1984 (CICA), GAO is authorized to decide bid protests "concerning an alleged violation of a procurement statute or regulation." Although protests usually involve alleged violations of statutes that are indisputably procurement statutes (such as CICA) governing procurements of property or services by federal agencies, GAO also will consider protests alleging violations of other statutes or regulations where those statutes or regulations bear directly on federal agency procurements. Here, the statute on which the protester's argument is founded‑‑10 U.S.C. § 129a‑‑is not a procurement statute. Nor does it bear directly on federal agency procurements; rather, it sets forth the general personnel policy of DOD. Moreover, the provision does not require a cost comparison between agency and contractor performance; it requires only that agencies use the "least costly form of personnel consistent with military requirements and other needs of the Department." The protest is dismissed.
5. California Industrial Facilities Resources, Inc., B-403421; B-403421.2; B-403766; B-403788, November 5, 2010
Link: GAO Opinion
Agency: Defense Logistics Agency
Disposition: Protests denied.
Keywords: Task Order Protest
General Counsel P.C. Highlight: GAO is authorized to hear protests of task orders that are issued under multiple-award contracts (or protests of the solicitations for those task orders) where the task order is valued in excess of $10 million, or where the protester asserts that the task order increases the scope, period, or maximum value of the contract under which the order is issued.
California Industrial Facilities Resources, Inc. d/b/a CAMSS Shelters (CAMSS) protests the issuance of a task order by the Defense Logistics Agency (DLA) for tents and accessories pursuant to the agency's multiple-award indefinite-delivery/indefinite-quantity (ID/IQ) contract for special operational logistical equipment. CAMSS also protests the terms of requests for quotations (RFQ) issued by DLA for additional tents and accessories under the ID/IQ contract.
Four ID/IQ contracts were awarded by DLA on the basis of full and open competition under a request for proposals (RFP) for special operational logistical equipment. The RFP informed offerors that the agency was soliciting proposals for tailored logistics packages for a full range of equipment for military commands and other authorized customers world-wide. Offerors were also informed that the "primary concept" of the contract would be to support U.S. special operations forces by providing all equipment necessary to perform their missions. The SOW identified 23 general categories of items and advised offerors that the contractor would be required to supply over 8,100 separate commercial items. The SOW identified nine federal supply classes as examples of some of the general categories of items to be ordered, but stated that the contract would not be limited to those supply classes. The RFP also included a "core list" of 391 items, identified by manufacturer's part number or description, and advised that the list was representative of the items that could ordered under these contracts. The RFP also advised that the government reserved the right to bilaterally add new or replacement items by contract modification at prices to be negotiated. The RFP further advised that there could be a significant number of these additions. The four ID/IQ contracts were subsequently modified in 2009 to include tents.
U.S. Forces in Afghanistan (USFOR-A) submitted purchase requests to DLA for tents and accessories. DLA also received requests from USFOR-A for tents for surgical facilities, medical supply warehouses, work spaces, and housing soldiers. DLA issued a task order RFQ to the four ID/IQ contractors for 300 tents and related accessories, and DLA received quotations. DLA issued a task order to one contractor for the tents and accessories, which CAMSS protested. DLA issued another four RFQs for additional tents and accessories, which CAMSS protested.
CAMSS, which does not hold a contract with DLA to provide operational logistical equipment, contends that the task order and subsequent RFQs exceed the scope of the original ID/IQ contract. The protester contends that the tents do not fall within the 23 identified categories of equipment, the nine federal supply classes of equipment, or the core list of items identified in this contract.
GAO is authorized to hear protests of task orders that are issued under multiple-award contracts (or protests of the solicitations for those task orders) where the task order is valued in excess of $10 million, or where the protester asserts that the task order increases the scope, period, or maximum value of the contract under which the order is issued. Task orders that are outside the scope of the underlying multiple-award contract are subject to the statutory requirement for full and open competition set forth in the Competition in Contracting Act of 1984, absent a valid determination that the work is appropriate for procurement on a sole-source basis or with limited competition. In determining whether a task order is beyond the scope of the contract, GAO and the courts look to whether there is a material difference between the task order and that contract. Evidence of such a material difference is found by reviewing the circumstances attending the procurement that was conducted; examining any changes in the type of work, performance period, and costs between the contract as awarded and as modified by the task order; and considering whether the original contract solicitation adequately advised offerors of the potential for the type of task order issued. The overall inquiry is whether the task order is of a nature that potential offerors would reasonably have anticipated.
GAO finds that the task order and RFQs for tents and related accessories are within the broad scope of the ID/IQ contract for operational logistical equipment. The stated primary purpose of the contract is to provide all equipment necessary for special operations forces to perform their missions. In this regard, offerors were informed that contractors would be required to quickly supply over 8,100 items of equipment and that a significant number of items may be identified after contract award. The RFP identified, as examples, 23 broad categories of items, nine federal supply classes, and nearly 400 core items. Although the tents being procured here were not specifically identified in the contract's original examples of equipment that could be ordered, we agree with DLA that the tents are within the broad types of survival gear and logistical and tactical equipment envisioned by the ID/IQ contract.
Although CAMSS disagrees with the agency that the tents fit within these identified categories of items that could be purchased, the protester has not identified any definition in the contract, or elsewhere, that limits these categories in the fashion argued by CAMSS. GAO agrees with the agency that potential offerors would reasonably have anticipated that the ID/IQ contract could require contractors to provide tents and related accessories necessary for special operations forces to accomplish their mission. The protests are denied.
