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Unequal Evaluation: Incumbent Not Credited For Retaining Its Own Employees

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Koprince Law LLC

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In its evaluation of proposals, a procuring agency gave a challenger a strength for proposing to recruit incumbent employees, but didn’t give the incumbent contractor a strength–even though the incumbent contractor proposed to retain the very same people.

Unsurprisingly, the GAO found that the evaluation was unequal, and sustained the incumbent’s protest.

The GAO’s decision in SURVICE Engineering Company, LLC, B-414519 (July 5, 2o17) involved an Air Force solicitation for engineering, program management, and administrative services at Eglin Air Force Base.  The solicitation called for award to the offeror proposing the best value to the government, considering three factors: technical capability and risk, past performance, and cost/price.  There were four technical subfactors, including a subfactor for technical workforce management.

SURVICE Engineering Company, LLC or SEC, was the incumbent contractor.  SEC submitted a proposal, in which it proposed to retain its incumbent personnel.  Engineering Research and Consulting, Inc., or ERC, also submitted a proposal.  ERC proposed to recruit many of SEC’s incumbent personnel.

In its evaluation of the technical workforce management subfactor, the Air Force assigned a strength to ERC for proposing to recruit SEC’s “high-performing, highly-skilled senior staff.”  However, the Air Force did not assign SEC a strength for proposing to retain its own incumbents.  The Air Force awarded the contract to ERC.

SEC filed a GAO bid protest.  SEC raised a number of allegations, including unequal treatment in the evaluation of the technical workforce management subfactor.  SEC contended that it was improper for the Air Force to award ERC a strength for proposing to recruit SEC’s incumbents, while not assigning SEC a strength for proposing to retain the same people.

The GAO wrote that “t is a fundamental principal of federal procurement law that a contracting agency must treat all offerors equally and evaluate their proposals evenhandedly against the solicitation’s requirements and evaluation criteria.”  Where an agency applies “a more exacting standard” to certain offerors’ proposals than others, “we have found such evaluation to involve disparate treatment.”

In this case, “SEC did not receive a strength for retaining its own employees by respecting seniority or for proposing the same staff.”  And “[w]here the parties propose essentially the same workforce, and where the agency assessed strengths for the awardee’s efforts to retain the workforce and has not shown why it did not assign similar strengths to the protester’s proposal, we conclude that the agency applied the evaluation criteria unequally and therefore that the evaluation was unreasonable.”

The GAO sustained this aspect of SEC’s protest.

The Air Force undoubtedly thought that it would be easier for SEC to retain its own employees than for a challenger like ERC to recruit them.  But that wasn’t a valid basis for assigning a strength only to ERC.  Both companies proposed the same people, so ERC’s proposal didn’t offer a benefit to the government that was missing from SEC’s proposal.

The SURVICE Engineering Company case is a good reminder that an agency cannot hold an incumbent to a higher standard than other offerors, at least not unless there are unusual circumstances–which didn’t exist here.


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