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1. George T. Brown Associates, Inc., B-404398, January 26, 2011
Link: GAO Opinion
Agency: National Institute of Standards and Technology
Disposition: Protest denied.
Keywords: Technical Evaluation
General Counsel P.C. Highlight: It is a vendor's burden to submit an adequately written quotation in response to an RFQ and the vendor runs the risk that its quotation will be evaluated unfavorably where it fails to do so.
George T. Brown Associates, Inc. (Brown) protests the issuance of a purchase order under a request for quotations (RFQ), issued by the National Institute of Standards and Technology (NIST), for live webcasting.
The RFQ was issued as a total small business set-aside and contemplated the issuance of a fixed-price purchase order for full turnkey services to provide live webcasting of a three-day public meeting of the Information Security and Privacy Advisory Board (ISPAB). The meeting was to discuss issues pertaining to information security and privacy. The RFQ included a statement of work that included eight specific tasks to be performed. One task required the contractor to provide a link to the NIST website and provide a webcast page with the "same look/feel" as the current ISPAB page; another task required the contractor to allow viewers to send, post, and tag questions to posted agenda items.
Brown's quotations received a rating of technically unacceptable for two of the eight tasks. Brown's quotation was found unacceptable for the task that required a link to the NIST website and a webcast page with the same look and feel as the current ISPAB page. Brown's quotation required visitors to login with personal information, which was different from the ISPAB page and violated NIST's privacy policy against mandatory disclosure of personal information.
Brown's quotation was also found unacceptable under the task requiring that viewers be allowed to send, post, and tag questions to posted agenda items. Brown's quotation stated that the firm would provide an e-mail link and instructions for submitting questions "if requested."
GAO reviews challenges to an agency's technical evaluation to determine whether the agency acted reasonably and in accord with the solicitation's evaluation criteria and applicable procurements statutes and regulations. A vendor's mere disagreement with the agency's evaluation is not sufficient to demonstrate that the evaluation is unreasonable. It is a vendor's burden to submit an adequately written quotation and it runs the risk that its quotation will be evaluated unfavorably where it fails to do so. GAO fins no basis to object to the agency's evaluation. The RFQ required that the vendor provide full turnkey webcasting that meets the requirements of eight specific tasks. The record shows that Brown's quotation did not meet these requirements because its login requirement violated the NIST privacy policy, its webcast page did not have the same look and feel as the ISPAB page, and the quotation did not demonstrate with certainty that Brown would meet the requirement to send, post and tag questions without further action from the agency. The protest is denied.
2. Northeast Military Sales, Inc., B-404153, January 13, 2011
Link: GAO Opinion
Agency: Department of Defense
Disposition: Protest sustained.
Keywords: Technical Evaluation
General Counsel P.C. Highlight: GAO has recognized that judgments made during a technical evaluation are often subjective by nature, but the exercise of these judgments in the evaluation of proposals must be documented in sufficient detail to show that they are not arbitrary. When an agency fails to document or retain evaluation materials, it bears the risk that there may not be adequate supporting rationale in the record for GAO to conclude that the agency had a reasonable basis for its source selection decision.
Northeast Military Sales, Inc. (NEMS) protests the award of a contract under a request for proposals (RFP), issued by the Department of Defense, Defense Commissary Agency (DeCA), for deli and bakery resale operations.
The RFP provided for the award of a requirements-type, fixed-price-award-term contract for deli and bakery resale operations at six commissaries for a two-year base period with two one-year option periods and four one-year award term periods. Award would be made on a best value basis considering technical capability, past performance, and price. The technical capability factor included customer satisfaction, increasing sales, continuing customer savings, quality assurance program, and transition approach. The past performance factor included quality history/overall customer satisfaction, and business relations. For past performance, offeror's currently performing contracts for DeCA were permitted, but not required, to provide references from outside the agency. Non-DeCA contractors were required to provide past performance information on three to five contracts and/or subcontracts completed during the last three years, or currently in progress, that are similar in nature to the requirements of the solicitation and that demonstrate the offerors' ability to perform the services sought.
DeCA awarded the contract to an offeror other than NEMS and NEMS contends that the agency ignored adverse past performance information concerning the awardee's performance at a number of DeCA commissaries.
GAO's review of the record shows that the technical evaluation team received past performance information from DeCA commissaries and from two other federal agencies. Although there were a number of favorable comments, there were also several e-mails from DeCA commissaries indicating that the awardee had a number of performance problems including, staff and product shortages, unsanitary conditions, employee tardiness and cleanliness, and problems with sushi, including use of expired products and pre-dating products.
GAO states that as a general matter, the evaluation of an offeror's past performance is within the discretion of the contracting agency, and GAO will not substitute its judgment for reasonably based past performance ratings. While GAO has recognized that such judgments are often subjective by nature, the exercise of these judgments in the evaluation of proposals must be documented in sufficient detail to show that they are not arbitrary. Where a protester challenges the past performance evaluation and source selection, GAO will review the evaluation and award decision to determine if they were reasonable and consistent with the solicitation's evaluation scheme and procurements statutes and regulations, and to ensure that the agency adequately documented the basis for the selection. When an agency fails to document or retain evaluation materials, it bears the risk that there may not be adequate supporting rationale in the record for us to conclude that the agency had a reasonable basis for its source selection decision.
The record shows no consideration by the technical evaluation team or the contracting officer of the awardee's recent performance problems identified in these e-mails. Rather, the evaluation team rated the awardee's proposal "exceptional" for each of the two past performance subfactors, despite the team's receipt of numerous e-mails and reports of problems with the awardee's performance. Moreover, the record shows that several of the e-mails were addressed to the contracting officer here, and, during a hearing held by GAO on this matter, the contracting officer testified that she reviewed all of the information. GAO finds that the past performance rating is inconsistent with the agency's stated rating scheme, which provided that an "exceptional" rating would only be assigned for past performance reflecting a few minor problems. Based on the record, GAO concludes that the agency ignored adverse past performance information and, in assigning a past performance rating of exceptional to the awardee, deviated from the agency's evaluation scheme. The protest is sustained and GAO recommends that the agency reevaluate the awardee's proposal and make a new source selection decision.
3. Progressive Services Corporation, B-404183; B-404241.2, January 11, 2011
Link: GAO Opinion
Agency: Defense Logistics Agency
Disposition: Protests denied.
Keywords: Cancellation of a Solicitation
General Counsel P.C. Highlight: Where a protester alleges that an agency's rationale for cancelling an RFP is a pretext to avoid resolving a protest, GAO reviews that agency's rationale to ensure that the agency has a reasonable basis for the cancellation.
Progressive Services Corporation (PSC) protests the cancellation of requests for quotations (RFQ), issued by the Defense Logistics Agency (DLA), for lumber.
The RFQs were issued for the delivery of lumber to the Defense Distribution Depot in Germersheim, Germany. The RFQs provided that award would be made on a best value basis, considering price, delivery, and past performance. The RFQs further provided that past performance would be determined by review of government records of prior deliveries by the offeror and quality of material delivered.
Following initial award of a contract to Forest Products Distributors, Inc., PSC protested that the agency's evaluation of the awardee's past performance was unreasonable. DLA advised GAO that it had terminated both purchase orders and the underlying RFQs in order to re-examine the agency's past performance evaluation methodology and to ensure that the methodology is appropriate to meet the agency's needs.
PSC argues that DLA's rationale for canceling the two RFQs was a pretext to avoid the protests.
GAO states that contracting officials in negotiated procurements have broad discretion to take corrective action where the agency determines that such action is necessary to ensure fair and impartial competition. Where, as here, a protester alleges that an agency's rationale for cancellation is but a pretext to avoid resolving a protest, GAO reviews that agency's rationale to ensure that the agency has a reasonable basis for the cancellation.
DLA explained that, as a result of the protests, the agency began a review of the methodology it used to evaluate quotations, and realized that the RFQ did not adequately advise offeror's as to how past performance would be evaluated. DLA further explained that it would resolicit the procurement after its review was complete. GAO states that it is fundamental that vendors should be advised of the basis on which their quotations will be evaluated. The Competition in Contracting Act of 1984 requires contracting agencies to set forth in a solicitation all significant evaluation factors and their relative importance. Correcting the agency's error to allow for a fair and equal competition provides a reasonable basis for canceling the solicitations. Accordingly, GAO does not find that the agency's cancellation of the RFQs was a pretext to avoid GAO's review. The protest is denied.
4. Islands Mechanical Contractor, Inc., B-404275, January 24, 2011
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Lost Proposal Bid Bond
General Counsel P.C. Highlight: Agencies have a fundamental obligation to have procedures in place to receive submissions from competitors under a solicitation, to reasonably safeguard submissions received, and to fairly consider all submission received. As a practical matter, however, even with appropriate procedures in place, an agency may lose or misplace a submission, and such occasional loss generally does not entitle an aggrieved competitor to relief. In that circumstance, the offeror bears that risk of loss.
Islands Mechanical Contractor, Inc. (IMC) protests the Department of the Army's (Army) rejection of its proposal and award of multiple award task order contracts to other offeror's, under a request for proposals (RFP), for design/build and construction work.
The RFP contemplated the award of multiple indefinite-delivery/indefinite-quantity (ID/IQ) contracts, with a base period of three years with two option years, for design/build of construction-type work. The RFP required offeror's to submit a bid guarantee for 20% of the bid price or $3 million, whichever was less. The RFP provided that the government would review the bid guarantee for legal sufficiency and that a bid guarantee found legally insufficient may render the offer ineligible for award. The solicitation specifically cautioned that facsimile and photocopied bid guarantees were not acceptable.
IMC's proposal was evaluated as overall satisfactory. However, the agency found that IMC's bid bond was legally insufficient because it was not an original, lacked an original surety agent's signature, and failed to demonstrate that a duly authorized IMC officer had executed the bid bond. IMC's proposal was excluded from further consideration.
IMC protests the agency's rejection of its proposal, asserting that it submitted an original, duly executed bid bond as well as a copy which included a photocopy of the bid bond. IMC speculates that the contracting officer mistakenly furnished the attorney reviewing IMC's bid bond with the copy instead of the original. IMC submitted affidavits in support of its position. The contracting officer and specialist have submitted sworn statements that IMC submitted a photocopy and not an original.
Agencies have a fundamental obligation to have procedures in place to receive submissions from competitors under a solicitation, to reasonably safeguard submissions received, and to fairly consider all submission received. As a practical matter, however, even with appropriate procedures in place, an agency may lose or misplace a submission, and such occasional loss generally does not entitle an aggrieved competitor to relief. In such a circumstance, the offeror bears the risk of such a loss unless it can prove that the Agency's procedures are inadequate to safeguard offerors' submission or that the Agency routinely looses such submissions. The record does not support inadequate procedures or routine loss of offerors' submissions. Therefore, the lack of an original bid bond in the offeror's submission renders the submission unacceptable. The protest is denied.
