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1. Industrial Construction & Trading Company, B-403849, December 13, 2010

Link: GAO Opinion

Agency: Department of the Army

Disposition: Protest denied.

Keywords: Proposal Completeness

General Counsel P.C. Highlight: A finding that a protester submitted a proposal or other information as claimed requires evidence that the agency received the information; absent such evidence, there is no basis for GAO to question the agency's representation as to what was or was not received.

Industrial Construction & Trading Company (ICTC) protests the rejection of its proposal under a solicitation, issued by the Department of the Army (Army), for line haul, heavy lift, and transport services.

The solicitation provided for award on a "best value" basis, considering factors such as price, technical, management, and past performance. Past performance information was to be submitted by June 25, 2010. Offerors were required to list up to six contracts performed in the past three years, with current points of contact. ICTC submitted a spreadsheet, with 12 entries listing 13 prior contracts, as its past performance information on June 25. The Army did not evaluate the proposal because the spreadsheet it received from ICTC did not include full periods of performance, full descriptions of the listed contracts, or points of contact, as required. ICTC claims that it submitted a spreadsheet that did in fact include the required information. In support of its claim, ICTC furnished a copy of the spreadsheet to GAO that it allegedly sent to the agency by e-mail on June 25; it is different from the agency's version--which supports its evaluation--and does include the required information.

GAO states that a finding that a protester submitted a proposal or other information as claimed requires evidence that the agency received the information. Absent such evidence, there is no basis for GAO to question the agency's representation as to what was or was not received. ICTC furnished GAO with an acceptable version of the spreadsheet, but could not document that this corrected spreadsheet was the version which was actually sent to the Army, nor could ICTC explain how the agency received an incorrect version spreadsheet. Consequently, GAO held that there is no basis to question the agency's representation as to the spreadsheet it received, or otherwise to conclude that the Army misevaluated the information submitted by ICTC. The protest is denied.

2. Glenn Defense Marine-Asia PTE, Ltd., B-403778, November 24, 2010

Link: GAO Opinion

Agency: Department of the Navy

Disposition: Protest denied.

Keywords: Multiple Awards

General Counsel P.C. Highlight: Where the RFP provides for multiple awards under certain circumstances, there is no basis for objection to an Agency's decision to split an award among to multiple offerors.

Glenn Defense Marine-Asia PTE, Ltd. (Glenn) protests the award of a contract under a request for proposals (RFP), issued by the Department of the Navy (Navy), for husbanding services for four lots in the Philippines. The RFP provided that award would be made to the responsible offeror who submitted the lowest-priced, technically acceptable offer with acceptable or neutral past performance.

The RFP contemplated the award of a fixed-price indefinite-delivery/indefinite-quantity (ID/IQ) contract for a 12-month period with an option period of six months. The RFP also included two required clauses. The first stated that, "the Government reserves the right to make a single award to the offeror whose offer is considered in the best interest of the Government, price and other factors considered." The second stated that, "the Government reserves the right to make an award on any item for a quantity less than the quantity offered, at the unit prices offered, unless the offeror specifies otherwise in the offer."

Although Glenn's proposal was the lowest overall priced, the agency considered the cost savings of making a split award and determined that it was in the government's best interest to award two contracts. Glenn argues that the solicitation expresses a clear intent to make a single award for all lots and does not provide for split awards.

The RFP clearly incorporated the multiple awards provision mentioned above. GAO has held that this language is sufficient to indicate that multiple awards may be made where the award clause does not specifically require an aggregate award. Additionally, GAO has consistently required award on the basis of the most favorable overall cost to the government where multiple awards are permitted. Therefore, GAO has no reason to question the agency's award of multiple contracts where the RFP permitted multiple awards. The protest is denied.

3. International Medical Corps, B-403688, December 6, 2010

Link: GAO Opinion

Agency: Agency for International Development

Disposition: Protest denied.

Keywords: Clarifications

General Counsel P.C. Highlight: Clarifications during a negotiated procurement cannot be used to: 1) cure proposal deficiencies or material omissions; 2) materially alter the technical or cost elements of the proposal; or 3) otherwise revise the proposal.

International Medical Corps (IMC) protests the exclusion of its proposal from the competitive range under a request for proposals (RFP), issued by the Agency for International Development (AID) for healthcare support services.

The RFP, issued under FAR Part 15, Negotiated Procurement, provided for the award of a four-year, cost-plus-fixed-fee contract for services supporting AID's primary healthcare project in Iraq. The RFP included a detailed statement of work (SOW). Offerors were informed that award would be made on a best value basis, considering cost and the following four technical evaluation factors: technical approach; key personnel and staffing plan; management plan; and organizational capacity and past performance. The RFP said the Agency intended to make award without conducting discussions. IMC's technical proposal received marginal ratings under the first three factors and an acceptable rating for organizational capacity and past performance, which led to an overall marginal rating. IMC's proposal was excluded from competitive range. IMC complains that the agency improperly evaluated its technical proposal.

When asked to review an Agency's evaluation and exclusion of a proposal from the competitive range , the GAO states that it will examine the reasonableness and consistency of an agency's 1) solicitation criteria; and 2) application of statutes and regulations. Contracting agencies are not required to retain a proposal in the competitive range that is not among the most highly rated, or if the agency otherwise reasonably concludes that the proposal has no realistic prospect of being selected for award. A protester's mere disagreement with an agency's evaluation and competitive range judgment does not establish that the agency acted unreasonably.

Here, the RFP informed offerors that proposals would be evaluated on the extent to which: 1)offerors provided a feasible approach to improving the quality of primary healthcare delivery; and 2) and demonstrated the ability to implement the project rapidly and realistically and achieve "quick wins" within the first year. IMC does not dispute or address either the agency's finding that its proposed "quick wins" timeline was unrealistic, or the finding that IMC's proposal could not be rapidly applied in all primary healthcare clinics. IMC's proposal merely states that it analyzed alternative models, but only provides generalized statements regarding best practices.

Additionally, GAO agrees with the agency that IMC's proposal did not clearly explain its proposed technical approach, nor did it clearly present its staffing and illustrative performance monitoring plans. GAO states that it is an offeror's responsibility to submit a well-written proposal, with adequately detailed information, which clearly demonstrates compliance with the solicitation requirements and allows a meaningful review by the procuring agency. Here, GAO's review of the record illustrates that, rather than relying on a well-written explanation of its proposed technical approach, IMC appears to rely upon a dizzying array of complex diagrams, figures, tables, charts, and graphs. Several diagrams and figures are completely illegible, and résumés submitted for IMC's key personnel are also disorganized and difficult to follow.

IMC also challenges the agency's assessment that IMC's proposed illustrative performance monitoring plan failed to provide higher level impact or outcome indicators. GAO agrees with the agency. IMC's plan listed 39 so-called "indicators" and "measurements," which simply parrot the list of deliverables in the RFP. The plan also purports to identify "intermediate" indicators and outcomes, but does not in fact identify any "higher-level" indicators as required by the SOW.

IMC complains that it was competitively prejudiced when the agency unfairly evaluated its proposal to determine its key personnel's Arabic language skills. However, the GAO finds no reasonable possibility that IMC was competitively prejudiced in this regard. The TEC found that IMC's proposed key personnel were acceptable, despite the concern that the individuals lacked Arabic language skills.

GAO also finds no merit to IMC's argument that its proposal should have been included in the competitive range, because IMC proposes the lowest overall cost. Although it is true that IMC proposes the lowest cost, an agency evaluates proposals for the award of a cost-reimbursement contract based on projections of actual and allowable costs. Here, the agency found IMC's proposed costs to be unrealistic, unbalanced, and inconsistent with the firm's technical approach and/or program requirements.

Finally, IMC asserts that, prior to excluding its proposal from the competitive range, the agency should have sought clarifications. GAO states that an Agency may engage in "clarifications" when contract award without discussions is contemplated, but the exchanges between the agency and offerors are generally limited. By way of contrast, "discussions" occur when the agency indicates to each offeror the material weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to significantly enhance the proposal's potential for award.