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1. McRae Industries, Inc., B-403335, October 20, 2010
Link: GAO Opinion
Agency: Defense Logistics Agency
Disposition: Protest denied.
Keywords: Technical Evaluation
General Counsel P.C. Highlight: In reviewing protests against allegedly improper evaluations, the GAO will examine the record to determine whether the agency's determination was reasonable and consistent with the terms of the solicitation but will not perform a re-evaluation of the proposal.
McRae Industries, Inc. (McRae) protests the award of a contract under a request for proposals (RFP) issued by the Defense Logistics Agency for temperate weather boots for men and women.
The RFP contemplated the award of a fixed-price indefinite-delivery/indefinite-quantity (ID/IQ) contract for a base year and four one-year option periods. The RFP included FAR section 52.219-4, which notified potential offeror's that an evaluation factor of 10% would be added to the price of all proposals except those of small business concerns. The RFP also included a list of non-price factors including: product demonstration model (PDM), past performance/experience, and socioeconomic support.
McRae's proposal received an overall rating of satisfactory because the contracting officer concluded that the PDM had visual and dimensional defects, and flame resistance test failures that would require preventive corrective action prior to actual production. The contracting officer established a competitive range including all offerors and conducted discussions with each of these offerors. McRae was requested to address all deficiencies, explain how they occurred, and describe the remedy proposed. McRae also was required to certify that the deficiencies would not occur in production if the company received award of the contract.
In its response, McRae lowered its price, provided test results from an independent laboratory indicating that its boots had successfully passed flame resistance testing performed by that laboratory, and questioned whether the agency's tests were in error. The contracting officer held an additional round of discussions with McRae but eventually determined that the Government's tests results were valid.
The agency received and evaluated final proposal revisions, which resulted in no changes to the offerors' technical ratings. T he source selection authority (SSA) performed a detailed comparison of the awardee's proposal and McRae's proposal. The SSA ultimately determined that the awardee's proposal was "slightly superior" due to the fact that the awardee's PDMs had only two flame resistance testing failures while McRae's had four.
McRae asserts that the proposals were not reasonably evaluated, and that the agency improperly determined that the awardee's proposal was superior. GAO states that in reviewing protests against allegedly improper evaluations, it will examine the record to determine whether the agency's determination was reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. An offeror's mere disagreement with agency's assignment of adjectival ratings, or other aspects of the evaluation, does not render the evaluation unreasonable.
GAO's review of the record finds that the SSA performed an in-depth analysis of the proposals that reasonably took into account the relative strengths and weaknesses of each one. SSA reasonably determined that the awardee's proposal was more advantageous to the agency and also lower in price. The protest is denied.
2. Metters, Incorporated, B-403629, November 10, 2010
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Late Proposals
General Counsel P.C. Highlight: It is an offeror's responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of a proposal.
Metters, Incorporated (Metters) protests the rejection of its proposal as late by the Department of the Army under a request for proposals (RFP), which provides for the issuance of a delivery order for the design, development, fabrication, test and delivery of a virtual training system for dismounted soldiers.
The Army awarded multiple indefinite-delivery, indefinite-quantity (ID/IQ) contracts for simulation and training products and services. The agency then competed among the ID/IQ holders the award of a delivery order, on a best-value basis, for a virtual training system. The task order RFP included detailed instructions for the submission of proposals, including that proposals be received by the agency at the Army's Program Executive Office for Simulation, Training and Instrumentation (PEO), 3100 Technology Parkway, Orlando, Florida, no later than 3 p.m. on July 1, 2010. Offerors were instructed that "[t]he proposal shall be submitted in three sets of two CDs each." In addition, the RFP expressly stated that paper copies were not authorized, and that offerors were not permitted to submit their proposals by email or facsimile.
On the specified closing date, at approximately 2:13 p.m., one of Metters' proposed subcontractors attempted to email its cost proposal to the agency's contract specialist. The contract specialist responded by email to the subcontractor at 2:27 p.m. that submission of the proposal by email was not authorized and that the proposal must be received by the agency by 3 p.m. that day by hand delivery or mail. At approximately 2:45 p.m. on July 1, the protester and one of its subcontractors arrived at the specified address and called the contract specialist; the contract specialist met Metters at approximately 2:57 p.m., at which time Metters submitted the protester's proposal on six CDs (including three copies, each, of the technical and cost proposal CDs) and sealed, printed copies of its two subcontractors' proprietary cost information and proposals. The contract specialist returned the sealed envelope with the subcontractors' proposals and informed the protester that paper proposals, including the subcontractors' submissions, were not permitted under the RFP. The contracting officer determined that Metters's proposal was incomplete as initially submitted, given that it did not include the subcontractors' proposals as required by the RFP, and Metter's complete proposal, with subcontractors' proposals, was late.
Metters asserts that its proposal should not have been rejected as late, arguing that a complete copy of its proposal (with the paper versions of the subcontractors' proposals) was submitted to the agency before 3 p.m. GAO states that it is an offeror's responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of a proposal. The late proposal rule alleviates confusion, ensures equal treatment of offerors, and prevents one offeror from obtaining a competitive advantage as a result of being permitted to submit a proposal later than the deadline set for all competitors.
GAO finds that the record shows that the agency did not receive a complete proposal in the correct format from Metters until after the closing time specified in the solicitation, and therefore its proposal was late. Although Metters notes the agency had received all but the subcontractors' proposals by the 3 p.m. closing time, offerors were required to submit their complete proposal to the agency by the closing time, and timely delivery of part of a proposal does not constitute the timely submission of the proposal.
GAO does not agree that the protester's late submission of a complete proposal was caused by some ambiguity in the RFP. A solicitation ambiguity exists where two or more reasonable interpretations of the terms of the solicitation are possible. Here, the proposals' format was addressed in the RFP's proposal preparation instructions, where offerors were instructed that they must submit their proposals on CDs, that paper copies were not permitted, and that submission of proposals by email or facsimile was not authorized. GAO finds that the RFP required that subcontractors' proposals, like the offerors' own proposals, be submitted on CDs. Because Metters did not deliver its subcontractors' proposals on CDs to the agency until after the specified closing time, the agency was reasonable in rejecting the proposal as late. The protest is denied.
3. TechStart, LLC, B-403515, November 10, 2010
Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest denied.
Keywords: Responsiveness
General Counsel P.C. Highlight: It is the vendor's responsibility to submit a well-written quotation, with adequately detailed information, that clearly demonstrates compliance with the solicitation requirements.
TechStart, LLC (TechStart) protests the award of a contract by the Department of Veterans Affairs (VA) under a request for quotations (RFQ) for emergency call boxes.
The VA issued the RFQ as a combined synopsis/solicitation for commercial items for the procurement of 17 emergency call boxes. In addition to the emergency call boxes, the RFQ required offerors to provide several accessories, including "STROBE AND BLUESTAR LOCATOR LIGHT ASSEMBL[IES]" for each call box. The RFQ also stated that quotations were to be submitted as FOB Destination.
TechStart's quotation specified another call box system as an equivalent. TechStart's quotation offered the lowest price. TechStart provided an explanatory letter and product literature with its quotation to demonstrate the claimed equivalence of the other system. In reviewing the quotation, the agency found that the product literature did not indicate whether strobe and Bluestar locator light assemblies were included in the other system. Techstart also failed to indicate whether the assemblies were included in its quoted price. The agency also discovered that, while the quotation stated that it was priced FOB Destination, its price schedule listed shipping and handling charges. Further, the payment terms of TechStart's quotation required a 25% initial deposit, which the contracting officer concluded the agency could not properly pay.
Rather than reject TechStart's quotation immediately, according to the agency, the contracting officer made several attempts to contact TechStart for clarification. When no response was received, the contracting officer determined that TechStart's quotation was ambiguous and not responsive to the RFQ.
TechStart asserts that the alleged ambiguities in its quotation were insignificant, and that a reasonable review of the quotation should have led the contracting officer to regard the issues as minor discrepancies. GAO has reviewed the record here and agrees with the contracting officer's conclusion that TechStart's quotation was unacceptable under the RFQ.
It is the vendor's responsibility to submit a well-written quotation, with adequately detailed information, that clearly demonstrates compliance with the solicitation requirements. At the time the contracting officer determined to make the award, TechStart's quotation remained ambiguous as to whether the strobe and Bluestar locator light assemblies were included and whether the shipping and handling charges applied, and required a 25% pre-performance deposit that the agency was not authorized to pay. Under these circumstances, the contracting officer properly concluded that TechStart's quotation was unacceptable. The protest is denied.
4. Archer Western Contractors, Ltd., B-403227; B-403227.2, October 1, 2010
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Technical Evaluation
General Counsel P.C. Highlight: In reviewing protests of alleged improper evaluations and source selection decisions, it is not GAO's role to reevaluate submissions but will, rather, determine whether the evaluation was reasonable and in accord with the stated evaluation criteria and applicable procurement laws and regulations.
Archer Western Contractors, Ltd. (Archer) protests the award of a task order under a request for task order proposals (RFP) issued by the Department of the Army, Corps of Engineers, for the design and construction of a "warriors in transition" complex, which provides facilities to allow injured or temporarily disabled soldiers to live, eat, train, and work together.
The RFP provided for the issuance of a fixed price task order under a previously awarded multiple-award, task order contract for the design and construction of a warriors in transition complex, consisting of a barracks for wounded soldiers and related items including landscaping, paving, walks, curbs, drainage, and access roads. The Statement of Work (SOW) identified functional, technical, and design requirements and objectives for the complex. Offerors were informed that proposals would be evaluated on a best value basis. The RFP identified a number of desired features as "preferable," and others as "desirable."
The evaluation results were provided to the contracting officer, who was the selection official for this procurement. The contracting officer noted that both firms' proposals were evaluated as having significant strengths and betterments, but the awardee's proposal included a highly significant strength because the foundation it chose reduces movement and prevents cracking, which "exponentially increases the durability of the facility while [it] reduces maintenance costs due to the environment in which the facility is being built."
Archer argues that the RFP defined a good rating to be a proposal that had a sound approach with "few relatively minor disadvantages," and an excellent rating to be a proposal that had "essentially no disadvantages." Archer contends that because the agency found that the firm's proposal contained no disadvantages under this factor, its proposal should have been rated as excellent. In this regard, Archer argues that the agency evaluated the firms' proposals disparately.
GAO states that in reviewing protests of alleged improper evaluations and source selection decisions, it is not GAO's role to reevaluate submissions; rather, it will examine the record to determine whether the agency's judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement laws and regulations. In this regard, agencies' use of evaluation ratings for offerors' proposals, whether numeric, color or adjectival, are but guides to, and not substitutes for, intelligent decisionmaking; they do not mandate automatic selection of a particular proposal. A protester's mere disagreement with an agency's judgment is not sufficient to establish that an agency acted unreasonably.
Here, Archer's arguments provide no basis to object to the agency's evaluation of proposals under the design/technical factor. The agency found that the awardee's proposal was superior to Archer's, largely due to the awardee's offer of a specific foundation. Although Archer disagrees with this judgment, it does not show it to be unreasonable. The protest is denied.
5. Commissioning Solutions Global, LLC, B-403542, November 5, 2010
Link: GAO Opinion
Agency: Department of Homeland Security
Disposition: Protest denied.
Keywords: Past Performance
General Counsel P.C. Highlight: The contracting agency has the discretion to determine the relevance and scope of the performance history to be considered, and GAO will not question the agency's judgment unless it is unreasonable or inconsistent with the terms of the solicitation
Commissioning Solutions Global, LLC (CommSol) protests the award of a contract issued by the Department of Homeland Security, United States Coast Guard, under a request for quotations (RFQ) for dry dock repairs of the Coast Guard Cutter Tornado.
The RFQ, issued as a total small business set-aside, provided for the award of a fixed-price contract in accordance with Federal Acquisition Regulation (FAR) Subpart 13.5 "Test Program for Commercial Items." The RFQ stated that award would be made on a best value basis, considering past performance and price, and that the past performance factor was significantly more important than price.
With respect to the past performance factor, vendors were required to identify "at least two relevant (construction, overhaul, repair, and alteration of ships) federal, state or local government or private contracts" performed during the last three years. The RFQ explained that the past performance evaluation would take into account the guidelines outlined at FAR § 15.305(a)(2) Past Performance Evaluation, and further provided that past performance would be evaluated for quality of product or service, timeliness of performance, business relations, and subcontracts. In addition to reviewing the information provided by the vendors, the RFQ stated that the government intended to review Coast Guard contractor performance reports and other existing past performance ratings on relevant contracts.
CommSol's quotation listed 31 projects and the list included two contracts for dry dock work: one in 2006 valued at $35,546 and another in 2010 valued at $500,000. The list also included two contracts with the Coast Guard in 2006 for flushing a main diesel engine and the flushing of a reduction gear, valued at $94,544 and $115,612, respectively. Finally, the list included a 2010 contract valued at $89,986 for the hot flushing of a main diesel engine, for which CommSol identified as its contact person the contract specialist for this solicitation.
With regard to these contracts, the Coast Guard relied on prior attempts to contact the identified references during another acquisition in 2009; neither reference provided any past performance information to the Coast Guard. The first reference informed the agency that "I don't recall the performance by this vendor and this [purchase order] file is no longer located in this area." The second reference stated that she would send information via email, but the record indicated she failed to do so. With regard to the 2010 dry dock repairs contract, the Coast Guard noted that this contract was terminated for default.
CommSol challenges the Coast Guard's evaluation of its past performance, arguing variously that the Coast Guard applied unstated evaluation criteria, improperly determined that CommSol's past performance references were not relevant to the current acquisition, relied on inaccurate past performance information, and did not make reasonable efforts to contact CommSol's references. GAO states that where, as here, a solicitation contemplates the evaluation of vendors' past performance, the contracting agency has the discretion to determine the relevance and scope of the performance history to be considered, and GAO will not question the agency's judgment unless it is unreasonable or inconsistent with the terms of the solicitation or applicable procurement statutes and regulations. A protester's mere disagreement with the agency's judgment does not establish that an evaluation was unreasonable.
GAO disagrees with CommSol's apparent belief that the Coast Guard was limited to determining whether a firm had identified two relevant contracts. As noted above, the RFQ provided for a qualitative assessment of vendors' past performance, and instructed vendors to identify "at least" two relevant contracts in the past three years. To the extent that CommSol is complaining that the RFQ did not specifically state that the agency might credit a vendor for having a number of relevant contracts, we think such a consideration would be logically encompassed by or related to considering the quality of the vendor's past performance.
The record also shows that CommSol's identified past performance was not of similar size, scope and complexity to the work solicited here. Although some of the identified work appears to be for tasks that would be part of the overall dry dock work, none of these smaller contracts is for the range of tasks comprising the dry dock work under this RFQ. GAO finds that the Coast Guard reasonably concluded that CommSol's contracts were not relevant. The protest is denied.
