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1. Applied Technology Systems, Inc., B-404267; B-404267.2, January 25, 2011
Link: GAO Opinion
Agency: Department of Labor
Disposition: Protest denied.
Keywords: Negotiations; Discussions
General Counsel P.C. Highlight: An agency is not obligated to reopen negotiations to give an offeror the opportunity to remedy a defect that first appears in a revised proposal.
Applied Technology Systems, Inc. (ATSI) protests the Department of Labor's (DOL) award of a contract pursuant to a request for proposals (RFP), for operation of the Westover Job Corps Center in Massachusetts.
The RFP sought proposals to perform a cost-plus-incentive-fee contract to "provide material, services, and all necessary personnel to operate" the Job Corps Center. The solicitation provided that, following submission and evaluation of initial proposals, the agency would make a competitive range determination and that offerors within the competitive range could be required to make oral presentations. The solicitation contained three questions that offerors would be required to address during their oral presentations. These questions were revised and supplemented in a subsequent amendment.
The agency opened discussions with ATSI and advised the company that it had concerns regarding various matters and provided a list of questions and requests for information regarding these concerns. ATSI made its oral presentation to the agency. However, ATSI did not address the revised and additional questions contained in the RFP amendment. As a result, ATSI's oral presentation received an "unsatisfactory" rating. The agency gave ATSI a chance to address the omitted questions in its final proposal revision (FPR). Although ATSI acknowledged multiple negative aspects of its proposal, the agency ultimately chose another offeror.
ATSI challenges the agency's identification of various weaknesses in its proposal with regard to the past performance/experience evaluation factor. GAO states that the evaluation of past performance, including the agency's assessments regarding relevance, scope, and significance of the offeror's performance history, is a matter of agency discretion, which GAO will not disturb unless those assessments are unreasonable, inconsistent with the solicitation criteria, or undocumented. Further, an agency's past performance evaluation may be based on a reasonable perception of inadequate prior performance, regardless of whether the contractor disputes the agency's interpretation of the underlying facts or significance of those facts. Finally, a protester's mere disagreement with the agency's assessment is not sufficient to establish that the agency acted unreasonably. GAO's review of the record found many undisputed statements regarding ATSI's negative past performance history under prior Job Corps contracts.
ATSI also complains that the agency's question regarding corporate oversight was "ambiguous," that ATSI misunderstood the question, and that the agency "should have reopened discussions." GAO states that when an agency engages in discussions with an offeror, the discussions must be meaningful, that is, they must lead the offeror into the areas of its proposal that require correction or additional information. However, an agency is not obligated to reopen negotiations to give an offeror the opportunity to remedy a defect that first appears in a revised proposal.
Here, the agency first advised ATSI of the requirement to address corporate oversight in the RFP amendment. ATSI provided its oral presentation, but states that it "was previously unaware" of the amended solicitation's requirements to explain its approach. The agency then provided written discussion questions, specifically repeating its request that ATSI address its proposed corporate oversight, and warning ATSI to make sure that its "FPR is complete since the [agency] intends to make award without obtaining any further revisions." GAO finds that the agency clearly provided ATSI with a meaningful opportunity to fully discuss its proposed corporate oversight and ATSI did not. The protest is denied.
2. Airforce Turbine Services, Ltd., B-404478, February 16, 2011
Link: GAO Opinion
Agency: Department of Agriculture
Disposition: Protest denied.
Keywords: Unduly restrictive RFP terms; national security; human safety
General Counsel P.C. Highlight: Where a protester challenges specifications in an RFP as unduly restrictive of competition, GAO will review the record to determine whether the restrictions imposed are reasonably related to the agency's needs. Where a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness.
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Airforce Turbine Services, Ltd. (ATS) protests the terms of a request for proposals (RFP), issued by the Department of Agriculture, Forest Service (FS), for aircraft engine maintenance and overhaul services.
FS issued the RFP for aircraft maintenance and overhaul services of Pratt & Whitney engines installed on FS aircraft used in fighting forest fires. The RFP included the requirement that contractors are Federal Aviation Administration (FAA) certified and be a designated overhaul facility (DOF) to perform work on specific Pratt & Whitney aircraft engine model numbers. Each offeror was required to present valid evidence of current authority to perform work on the listed engines, and only offerors that were certified DOFs were eligible for award.
ATS, which is not a DOF, asserts that the requirement that offerors be certified DOFs is unduly restrictive of competition. GAO states that the determination of a contracting agency's needs and the best method of accommodating them are matters primarily within the agency's discretion. However, where a protester challenges a specification as unduly restrictive of competition, GAO will review the record to determine whether the restrictions imposed are reasonably related to the agency's needs. Where a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. Ultimately, a protester's mere disagreement with the agency's judgment concerning its needs and how to accommodate them does not show that the agency's judgment is unreasonable.
The agency explains that its needs are for its aircraft and engines to be ready to perform mission critical tasks, such as fighting forest fires. The agency states that it is necessary to restrict this procurement to only DOFs because only DOFs provide the "unique combination" of a streamlined warranty process and minimized downtime necessary to get fire fighting planes back into the air. DOFs provide "crucial support" to overhaul and repair the engines that is not offered elsewhere. GAO finds no reason why the agency should not be permitted to adopt a requirement aimed at ensuring the highest level of reliability and availability of its aircraft, particularly in light of the need to fulfill its fire fighting mission. The protest is denied.
3. Instituto di Medicina del Lavoro-Archimede., B-404650, February 18, 2011
Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
Keywords: CCR Registration
General Counsel P.C. Highlight: An Agency may make award to a company not listed in the CCR for awards made to foreign vendors for work performed outside the United States, if it is impractical to obtain CCR registration.
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Instituto di Medicina del Lavoro-Archimede (IML) protests the award of a contract under a request for quotations (RFQ), issued by the Department of the Navy, to provide an occupational medical physician to provide occupational and environmental health support services at the U.S. Naval Hospital in Italy.
The RFQ provided for the award of a purchase order for a base year with four option years. Source selection would be made on a best-value basis, considering technical, past performance and price as evaluation factors. The RFQ required that "a prospective awardee" be registered in the CCR database "prior to award." However, the agency provided an exception to this requirement by stating that, "[i]f the offeror does not become registered in the CCR database in the time prescribed by the Contracting Officer, the Contracting Officer will proceed to award to the next otherwise successful registered Offeror." Only the protester and the awardee were found technically acceptable. Award was eventually made based on the lowest price.
However, before making the award, the agency realized that the awardee was not yet registered in the CCR database, although it had a CCR registration pending. The agency determined that an exception to the CCR registration requirement was applicable under Federal Acquisition Regulation (FAR) § 4.1102(a)(5), which provides for an exception to CCR registration for "[a]wards made to foreign vendors for work performed outside the United States, if it is impractical to obtain CCR registration." The agency completed and approved a waiver of the CCR registration requirement, that certified that this was an award made to a foreign vendor for work to be performed outside the United States and that it was impractical to obtain CCR registration prior to award.
IML argues that the awardee was ineligible for award because the firm was not registered in the CCR prior to award. GAO states that the solicitation did not require that contractors be registered in the CCR prior to the submission of quotations, but rather, required such registration prior to award. While an agency is generally obligated to ensure that prospective contractors are registered in the CCR database before award, the FAR provides a specific exception invoked by the agency that covers the present situation. GAO concludes that IML has not shown that the agency's determination, that it was impractical for the awardee to obtain CCR registration prior to award, was erroneous. The protest is denied.
4. Waterfront Technologies, Inc., B-403638.3, February 22, 2011
Link: GAO Opinion
Agency: Department of Labor
Disposition: Protest denied.
Keywords: Timeliness of Protest
General Counsel P.C. Highlight: A protester may not passively await information providing a basis for protest. Rather, a protester has an affirmative obligation to diligently pursue such information and a protester's failure to utilize the most expeditious information-gathering approach under the circumstances may constitute a failure to meet its obligation in this regard.
Waterfront Technologies, Inc. (WTI) protests the Department of Labor's (DOL) award of a contract, under a request for proposals (RFP), for information technology (IT) services.
The RFP contemplated the award on a "best value" basis of an indefinite-delivery, indefinite-quantity (ID/IQ) contract, for a base year with four option years, to integrate IT services. Because WTI's proposal was rated unacceptable overall, it was not considered for award. Another offeror was awarded the contract and WTI filed a protest. Prior to DOL's submission of its agency report on WTI's protest, another unsuccessful offeror filed a protest with the United States Court of Federal Claims (COFC), challenging the award and seeking a temporary restraining order and injunctive relief. Because the protested procurement was then pending before a court of competent jurisdiction, GAO dismissed WTI's.
WTI did not intervene in the COFC litigation, but WTI monitored the COFC proceedings on a weekly basis using the commercial website FreeCourtDockets.com (at http://www.freecourtdockets.com).WTI believed an answer was due from the COFC and misinterpreted the anticipated answer as a "resolution" of the matter at COFC. WTI re-filed its protest 37 days after the Court's dismissal of ESR's complaint.
GAO states that the Bid Protest Regulations contain strict rules for the timely submission of protests. Under these rules, a protest based on other than alleged improprieties in a solicitation must be filed no later than 10 calendar days after the protester knew, or should have known, of the basis for protest, whichever is earlier. A protester may not passively await information providing a basis for protest. Rather, a protester has an affirmative obligation to diligently pursue such information and a protester's failure to utilize the most expeditious information-gathering approach under the circumstances may constitute a failure to meet its obligation in this regard.
Here, WTI did not meet its obligation to utilize the most expeditious information-gathering approach under the circumstances. While the entry may have included the most recent information concerning the schedule for the COFC litigation available on the FreeCourtDockets.com website, the record indicates that more up-to-date information was available to the public through the official website for litigation at COFC (and other federal courts). In this regard, the official electronic case docket for federal courts, including COFC, is maintained online in the PACER database. Here, the publicly-available PACER docket for the protest indicates that the order granting the protester's motion to dismiss was filed and judgment entered on October 12; this information was reflected in PACER that same day. Had WTI been diligently monitoring the PACER website, instead of the commercial FreeCourtDockets.com website, it would have promptly known on or about October 12 that the litigation was resolved by dismissal of the complaint. The protest is denied.
5. Resource Dimensions, LLC, B-404536, February 24, 2011
Link: GAO Opinion
Agency: Department of the Interior
Disposition: Protest sustained.
Keywords: Simplified Acquisition Procedures
General Counsel P.C. Highlight: Even for procurements under simplified acquisition procedures, it is a fundamental principle of government accountability that an agency be able to produce a sufficient record to allow for a meaningful review where its procurement actions are challenged. Where an agency fails to adequately document its actions, 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 the source selection decision.
Resource Dimensions, LLC (Resource) protests the issuance of a purchase order, under a request for quotations (RFQ), issued by the Department of Interior (DOI), for the review and analysis of current land acquisition prioritization processes, and the development of recommendations for future collaborative landscape conservation procedures.
The RFQ was issued as a total small business set-aside using acquisition procedures pursuant to the authority of Federal Acquisition Regulation (FAR) subpart 13.5, "Test Program for Certain Commercial Items." The RFQ contemplated the issuance of a purchase order to the vendor submitting the quotation determined to represent the best value to the government. The solicitation provided for a two-step evaluation process. First, the vendors were rated on a go/no-go basis regarding their past experience. The vendors whose quotations were rated "go" were then requested to provide a technical quotation by means of an oral presentation with supporting documentation. The solicitation also required the successful contractor to complete three tasks for the agency. The first two tasks were to be performed during the base period: (1) analyze existing process for land acquisition prioritization and identify areas for improvement that will result in increased collaboration and enhanced outcomes, and (2) develop a multi-year strategy for landscape conservation and a derivative process to advance landscape conservation, involve the relevant participants, and allow for future adaptation. The third task--to develop an implementation plan for future years--was contained in an option that has not yet been exercised.
Resource received a "go" rating and scheduled its oral presentation. The oral presentation was videotaped. After the presentation, the technical evaluation panel (TEP) reviewed their notes on the presentation and returned to the presentation room for a question-and-answer (Q&A) session, which was not videotaped or otherwise recorded. Although the Q&A session was not recorded, it was documented with hand-written notes. Resource received a document from the contract specialist stating that Resource's quotation was unacceptable because it reflected a lack of understanding of the statement of work and did not adequately address specific methods and techniques, including cross-bureau collaboration. The document specifically referenced Resource's failure, during the Q&A session of the oral presentation, to articulate its methods or strategies in a variety of areas. The TEP did not review this document prior to award, but a TEP member testified at the hearing that this document accurately captured the TEP's evaluation.
Resource responded that they were "concerned that many of the notes provided in the attached document as our responses do not accurately reflect, or in many instances even closely match the wording of our verbal responses." Resource was allowed to make changes, but the responses must be the same as the responses given on the day of the presentation. Resource provided its proposed changes in the document to the contract specialist. Resource's changes were accepted and finalized. The agency issued a purchase order to the awardee and Resource filed its protest challenging its evaluation and the agency's selection of the awardee as the best value vendor.
Resource asserts that the agency unreasonably evaluated its technical quotation because the agency's assigned weaknesses in support of its determination that Resource's quotation was technically unacceptable were, in fact, adequately addressed in Resource's presentation. GAO states that simplified acquisition procedures are designed to, among other things, reduce administrative costs, promote efficiency and economy in contracting, and avoid unnecessary burdens for agencies and contractors. When using simplified acquisition procedures, an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate quotations in accordance with the terms of the solicitation. In reviewing protests of an allegedly improper simplified acquisition evaluation, GAO will examine the record to determine whether the agency met this standard and executed its discretion reasonably. Moreover, even for procurements under simplified acquisition procedures, it is a fundamental principle of government accountability that an agency be able to produce a sufficient record to allow for a meaningful review where its procurement actions are challenged. Where an agency fails to adequately document its actions, 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 the source selection decision. Nevertheless, in reviewing an agency's procurement actions, GAO does not limit its review to contemporaneous evidence, but considers, as appropriate, hearing testimony and the parties' arguments.
Here, while Resource's 1-hour oral presentation was videotaped, the Q&A session was not. Instead, this session was documented by hand-written notes taken by acquisition personnel. The contract specialist used these notes, and her own, to prepare a document memorializing the session. When Resource asserted that the contract specialist's account mischaracterized its answers, the contract specialist permitted Resource to submit its version of the answers, which with a few edits by the agency, was accepted as an accurate memorialization of the session. The accepted revisions provided much more detailed answers to the questions offered during the Q&A session of the oral presentation.
At the GAO hearing, a witness from the TEP was asked by the hearing officer to provide her recollection of Resource's Q&A session. The hearing officer read several of the questions from the document memorializing Resource's answers during the Q&A session to the TEP member, who testified that she had not seen either the initial or finalized version of the document. Although the TEP member testified that she was able to recall some of the questions, she had limited recall of Resource's answers; to the extent she recalled the answers, her recollection seemed more consistent with the initial version of the Q&A document, than with the final document that the agency agreed more accurately reflected Resource's answers.
Despite receiving hearing testimony and the parties' post-hearing arguments, GAO cannot find that the agency's documentation in regard to Resource's Q&A session is sufficient to allow it to review the reasonableness of the agency's judgments. Because the final, mutually agreed-upon version of the Q&A document addresses some of the weaknesses included in the TEP's consensus report that supported Resource's unacceptable rating, this document is at odds with the consensus evaluation report. In addition, the final Q&A document, which the agency accepted as an accurate memorialization of the session, is inconsistent with the testimony of the TEP witness; at a minimum, the final document provides more robust answers than the TEP member recalled during her testimony. The protest is sustained. GAO states that disturbing the purchase order is not appropriate, but does recommend that the agency not exercise the option for the third task and the agency should reimburse Resource it quotation preparation costs, as well as the costs of filing and pursuing its protests.
