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1. Hurricane Consulting, Inc., B-404619; B-404619.2; B-404619.3, March 17, 2011
Link: GAO Opinion
Agency: Department of Homeland Security
Disposition: Protest denied.
Keywords: Discussions
General Counsel P.C. Highlight: In responding to an issue raised in discussions, it is not enough to list proposed techniques for accomplishing a goal, but an offeror must explain in detail how the techniques are expected to achieve the goal.
Hurricane Consulting, Inc. (HCI), a small business, protests the issuance of a task order by the Department of Homeland Security (DHS), Bureau of Citizenship and Immigration Services (USCIS), under a task order request for proposals (RFP) for records management services at service centers.
USCIS issued the RFP seeking proposals from PACTS vendors to provide services for the agency's service centers. The RFP provided that award would be made to the vendor whose proposal represented the best value, considering technical capability, price, and past performance. The technical capability factor consisted of three subfactors: operational approach, management approach, and corporate capability. The most important subfactor, operational approach, contemplated the evaluation of each vendor's concept of operations, their management of work flow and work prioritization, whether proposed staffing is sufficient and appropriate for the requirements of the performance work statement, and the vendor's approach to maintaining quality standards.
The proposal submitted by HCI proposed Stanley Associates, Inc., the incumbent, as a subcontractor. But, in its final proposal, HCI proposed a reduction from the staffing level from the incumbent contract level. The evaluators explained that HCI's proposal rating under the operational approach subfactor was being lowered from good to acceptable based on a lack of an acceptable explanation of the reduction following discussions in which the agency raised a concern over the reduction. HCI failed to receive the contract award.
HCI challenges the agency's evaluation of its staffing under the operational approach subfactor of the technical capability factor and inadequate and unfair discussions. When discussions are held, they must be fair and not misleading.
Here, the discussion question posed by USCIS adequately informed HCI of the agency's concern over the firm's proposed reduction in staff. In this regard, the agency specifically identified HCI's reduced staffing as an issue for discussion and requested that the firm "explain how the reduction in FTE staffing will be sufficient to successfully perform the contract requirements." The record shows that USCIS downgraded HCI's final proposal revision because it provided inadequate support to justify HCI's operational approach using lower staffing.
The record reflects that the evaluators were concerned that the explanations submitted by HCI, in response to discussions on its reduced staffing, were inadequate. HCI merely listed, but did not provide details concerning proposed techniques for increasing efficiency, or explain how the techniques would achieve the reductions in work force proposed. Based on GAO's review, the record provides a reasonable basis for the agency's evaluation judgments, and thus there is no basis to question them. The protest is denied.
2. Cornerstone Construction Company, Inc., B-402747, July 23, 2010
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Technical Evaluation
General Counsel P.C. Highlight: . GAO reviews challenges to an agency's evaluation of proposals only to determine whether the agency acted reasonably and in accord with the solicitation's evaluation criteria and applicable procurement statutes and regulations.
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Cornerstone Construction Company, Inc. protests the award of a contract, by the Department of the Army, under a request for proposals (RFP) for the design and construction of an aero-medical services and mental health clinic.
The agency issued the RFP under a fixed-price contract. The project was a design-build project, where the RFP provided design requirements and requested that offerors propose a design consistent with those requirements. The RFP contained a detailed statement of work that included minimum design and construction criteria, along with "room criteria sheets" that provided additional detail concerning usable space, and numerous drawings and attachments, including drawings that depicted four staircases in the clinic building. The RFP stated that award would be made to the offeror whose proposal conforms to the solicitation, is fair and reasonable, and provides the best value to the government, considering design-technical, remaining performance capability, and price.
In concluding that the awardee's proposal provided the best overall value to the government, the source selection authority (SSA) determined that the technical merits and lower ratings of Cornerstone's proposal did not justify paying a higher price when compared to the awardee's higher-rated and lower-priced proposal, especially given the more aesthetically desirable design presented by the awardee.
Cornerstone argues that the awardee's proposal deviated from the RFP. Cornerstone also asserts that the agency improperly considered cost in the evaluation of technical proposals, and it asserts numerous other examples of a flawed evaluation or unequal treatment. GAO reviews challenges to an agency's evaluation of proposals only to determine whether the agency acted reasonably and in accord with the solicitation's evaluation criteria and applicable procurement statutes and regulations. A protester's mere disagreement with the agency's judgment is not sufficient to establish that an agency acted unreasonably.
Cornerstone contends that the awardee's proposal was unacceptable under the utilization of small business subfactor of the remaining performance capability factor. The protester argues that the RFP required, and the awardee's proposal failed to include, specific information about small business participation under its proposal. GAO states that although the RFP required the agency to consider the extent to which small businesses were specifically identified in the proposal and the role that the subcontractors would play, the RFP did not require firm commitments from offerors concerning the use of any particular subcontractor. Neither firm provided firm commitments from the subcontractors identified in their proposals. Given the design-build nature of the project, considering that the RFP did not require a firm commitment to use identified subcontractors, and given the detailed information provided by the awardee in its proposal, GAO finds the Corps' determination that the awardee submitted an acceptable proposal regarding its plans to utilize small businesses to be reasonable and not the result of unequal treatment.
Cornerstone next argues that its clinic design met an RFP requirement to provide four staircases, while the awardee's design included only three staircases. GAO agrees with the Corps that although the RFP advised offerors not to deviate from the accompanying design without government approval, the RFP also advised that offerors could nevertheless propose "changes to the design via Contractor-Proposed Betterments to improve constructability, functionality, and value to the Government." The record shows that, in accordance with the RFP, the Corps appropriately considered the awardee's proposed change to the design and reasonably determined that three staircases were sufficient to meet the requirements of its building design. Although Cornerstone disagrees with this assessment, it has not shown it to be unreasonable.
Cornerstone also argues that the awardee's proposed design deviated from mechanical access requirements because the design failed to allow for unhindered, interior access to rooftop air handling units. GAO finds that Cornerstone's argument is based on a misreading of the RFP requirements. Although the RFP contained a drawing that depicted a rooftop unit as being connected to stairs, there was no requirement in the technical specifications that the unit be constructed adjacent to stairs. Rather, the RFP required only that access to rooftop air handling units be unhindered and constructed to prevent snow and weather from entering the unit, and that the units be adjoined to a service corridor. The Corps determined that the awardee's approach met the RFP requirements and, based on a review of the record, GAO finds this determination to be reasonable.
Cornerstone asserts that the Corps improperly and disparately considered price or cost in the evaluation of the technical merits of proposals. However, the RFP contemplated a best value analysis, and the record shows that the agency considered price or cost only in this context; that is, the agency considered the price advantages and disadvantages of offerors' technical approaches in a manner that was reasonable and consistent with the RFP. GAO finds no evidence of unequal treatment in this aspect of the evaluation.
Cornerstone asserts unequal treatment in the conduct of discussions. Specifically, Cornerstone argues that the awardee was provided more detailed discussions and an additional round of discussions as compared to the discussions provided to Cornerstone. GAO's review of this aspect of the evaluation shows that the discussions were tailored to each offeror's proposal consistent with the requirements of the Federal Acquisition Regulation, and the varying detail reflected the different concerns the agency had with each offeror's approach. The protest is denied.
3. Bannum, Inc., B-404712, March 1, 2011
Link: GAO Opinion
Agency: Department of Justice
Disposition: Protest denied.
Keywords: Past Performance Evaluation
General Counsel P.C. Highlight: Where a solicitation requires the evaluation of offerors' past performance, it will examine an agency's evaluation only to ensure that it was reasonable and consistent with the solicitation's evaluation criteria. While a solicitation may specify the time frame for references an offeror may submit regarding past performance, such a limitation does not imply a limitation on the agency's evaluation of past performance.
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Bannum, Inc. protests the award of a contract by the Department of Justice, Bureau of Prisons (BoP), under a request for proposals (RFP), for residential reentry center services for federal offenders.
The BoP issued the RFP, seeking proposals to provide services under an indefinite-delivery/indefinite-quantity (ID/IQ) contract at daily per-inmate fixed prices for a base year and three option years. The RFP provided that proposals would be evaluated under three factors: past performance, technical/management, and price. The RFP specified that the past performance evaluation would consider the offeror's probability of successfully performing the contract based on its record of performance on relevant current and past contract efforts. The RFP emphasized that in the past performance evaluation, more recent and more relevant past performance would have a greater impact than less recent and less relevant performance. However, the RFP also noted that "where [a] relevant performance record indicates performance problems, the Government will consider the number and severity of the problems and the appropriateness and effectiveness of any corrective actions taken (not just planned or promised)."
In a report, the BoP evaluators presented the results of the past performance evaluation. For Bannum, the evaluators considered each of the referenced contracts, and provided a narrative discussion of numerous strengths and weaknesses of the firm's past performance, and made a determination about the relevance of each referenced contract. Based on the detailed evaluation, the evaluators rated Bannum's overall past performance as "Green-Acceptable." However, the evaluation report continued by describing an "Additional Consideration" for Bannum: the default termination of a contract for comprehensive sanctions center services in Austin, Texas. Bannum also had a higher price than the other considered offeror. Bannum was not awarded the contract.
Bannum argues that its past performance should have been rated as "Blue-Outstanding," and that this higher rating would have justified a tradeoff in its favor. GAO states that where a solicitation requires the evaluation of offerors' past performance, it will examine an agency's evaluation only to ensure that it was reasonable and consistent with the solicitation's evaluation criteria, since determining the relative merits of offerors' past performance information is primarily a matter within the contracting agency's discretion. While a solicitation may specify the time frame for references an offeror may submit regarding past performance, such a limitation does not imply a limitation on the agency's evaluation of past performance. More generally, an offeror's mere disagreement with the agency's assessment of its past performance, or the merits of its proposal relative to others, does not render the source selection unreasonable.
Although the RFP instructed offerors to submit past performance references that had occurred in the preceding three years (which at the time of Bannum's past performance proposal in June 2008 could have included the 2007 default termination), Bannum points to no limitation on the BoP's consideration of relevant past performance that was beyond that time, either in the RFP or by statute or regulation. Rather, the RFP description of the past performance evaluation merely indicated that more weight would be given to more recent experience. It did not foreclose consideration of older (or, for that matter, more recent) performance than the offeror had submitted. In short, Bannum has not shown that the BoP's evaluation was unreasonable or contrary to the terms of the RFP. The protest is denied.
4. Goel Services, Inc. in association with Grunley Construction Co., Inc., B-404168, January 12, 2011
Link: GAO Opinion
Agency: Department of Defense
Disposition: Protest denied.
Keywords: Price Evaluation
General Counsel P.C. Highlight: An agency may, in its discretion, provide for a price realism analysis for the purpose of assessing whether an offeror's price is so low as to evince a lack of understanding of the contract requirements or for assessing risk inherent in an offeror's approach.
Goel Services in association with Grunley Construction Co., Inc. (Goel/Grunley), protests the award of a contract under a request for proposals (RFP), issued by the Department of Defense (DOD), for the cleaning and repair of exterior limestone facades of the Pentagon.
The RFP contemplated the award of a fixed-price contract to clean and repair two exterior limestone facades at the Pentagon, and repair weathered and deteriorated masonry joints. BIG, the awardee, was the incumbent contractor for the second phase. The work was required to be completed in 100 calendar days. The RFP provided that award would be made to the offeror whose proposal represented the best value to the Government. The solicitation identified three evaluation factors: technical; past performance; and cost/price. With respect to the cost/price factor, the RFP provided that price proposals would be evaluated for reasonableness using one or more of the price analysis techniques in Federal Acquisition Regulation (FAR) § 15.404-1(b).
A technical evaluation team (TET) evaluated Goel/Grunley's proposal and rated the proposal acceptable for the management approach subfactor and good for the technical approach subfactor. Concerning price, Goel/Grunley initially did not include the required cost breakdown or supporting documentation in its proposal, but instead included only a lump sum amount per facade. In response to requests from DOD, Goel/Grunley subsequently provided cost breakdown information. The agency evaluated this information and determined that labor and other costs were "very low" compared to the government estimate and Goel/Grunley's proposal was found to pose a "potential risk of failure because of the low cost of labor." BIG was offered the contract.
The protester challenges the agency's evaluation of its proposal under each subfactor of the technical factor. GAO states that in reviewing a protest against an agency's evaluation of proposals, it will examine the record to determine whether the agency's judgment was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations. A protester's mere disagreement with the agency's evaluation does not render the evaluation unreasonable.
Under the first technical subfactor, management approach, the agency assigned a rating of acceptable to Goel/Grunley's proposal, finding three weaknesses. Given that Goel/Grunley's proposal contained only general statements that did not fully address the RFP requirements; GAO finds that it was reasonable for the agency to assess the proposal as merely acceptable.
The RFP also required offerors to "[d]iscuss your plan to recruit, hire and retain qualified personnel to meet the requirements of this acquisition." Neither the general statement included in Goel/Grunley's proposal nor any other statement or section of the proposal addressed a plan to recruit, hire, or retain qualified personnel, as required by the RFP. Thus, GAO finds that the agency reasonably considered this aspect of the proposal to be a weakness.
The RFP required offerors to submit resumes for the proposed project manager, safety officer, and other key personnel. These resumes were to address, among other things, the key personnel's experience and qualifications, current job title, and proposed position, thereby putting offerors on notice that the agency would evaluate this information. Although Goel/Grunley contends that the agency should not have assessed its proposal a weakness for the key personnel's lack of experience, based on GAO's review of the record, the agency's concerns appear to be reasonable and supported by the record. For example, a resume submitted by Goel/Grunley's shows over five years of general construction experience, but as the agency correctly notes, none of these projects involved limestone repair work on a historic building like the work required here.
Goel/Grunley also argues that the agency acted improperly by evaluating its proposal for price realism, asserting that the agency evaluated its proposal on the basis of an unstated evaluation factor. GAO states that before awarding a fixed-price contract, an agency is required to determine whether the price offered is fair and reasonable. An agency's concern in making this determination in a fixed-price environment is primarily whether the offered prices are too high, as opposed to too low, because it is the contractor and not the government that bears the risk that an offeror's low price will not be adequate to meet the costs of performance. An agency may, in its discretion, provide for a price realism analysis for the purpose of assessing whether an offeror's price is so low as to evince a lack of understanding of the contract requirements or for assessing risk inherent in an offeror's approach. However, offerors competing for award of a fixed-price contract must be given reasonable notice that a business decision to submit a low-priced proposal will be considered as reflecting on their understanding or risk associated with their proposal. Where a solicitation for a fixed-price contract omits a provision for realism but requests detailed cost or pricing information, GAO has found that an agency may properly consider whether an unreasonably low price poses proposal risk if the solicitation, in either the technical or price factors, provides for the evaluation of an offeror's understanding of the requirements.
The RFP here asked for direct and indirect cost information to be separately provided for each facade for the following categories: design, labor, materials, equipment, bonding, overhead, and profit. The RFP also required offerors to "provide all necessary supporting documentation for cost breakdown of design, labor, materials and equipment," and it encouraged offerors to provide "any other price or financial information that may be helpful in the understanding and evaluation of the Price Proposal." Furthermore, the RFP contained an evaluation factor, technical, that required the evaluation of the offeror's "understanding of the work," and offerors were informed that their proposals had to "[d]emonstrate the efficiency and cost effectiveness of [their proposed] approach." Based on this record, GAO concludes that the RFP provided adequate notice to the offerors that their low prices could be considered as reflecting on their understanding or risk associated with their proposals. The protest is denied.
