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FAR 15.305 (a)(3):  Proposal Evaluation - Evaluator's scoring

Comptroller General - Key Excerpts

New Background

Phase one of the procurement was completed in April 2015 with the issuance of the phase two RFP to five of the phase one competitors. The agency then established a phase two source selection evaluation board (SSEB), which conducted an initial evaluation of phase two proposals, and engaged in discussions with the remaining competitors. The SSEB evaluated revised proposals and issued a phase two evaluation report to the source selection authority (SSA) on September 9, 2015. The SSA conducted a best-value tradeoff analysis and selected Agile Infrastructure Services for award on September 19. CSG and A/T each filed a protest of that award with our Office. In response to the protests, the agency elected to take corrective action and our Office dismissed the protests on November 6. Construction Services Group, Inc., B-412343, Nov. 6, 2015 (unpublished decision); Atkinson/Trend, B-412343.2, Nov. 6, 2015 (unpublished decision).

Subsequent to taking corrective action, the agency issued amendment 0008 to the RFP and allowed all offerors to submit new revised phase two proposals. In order to evaluate the revised proposals, the agency constituted a new SSEB composed of all new SSEB members. This new SSEB evaluated the revised proposals, conducted an additional round of discussions, and thereafter issued a new evaluation report to the SSA on June 6, 2016.

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CSG alleges that the agency’s evaluation of its proposal was arbitrary and unreasonable because two significant strengths recognized by the original 2015 SSEB report were not recognized in the subsequent 2016 SSEB report. CSG also asserts that the agency unreasonably assessed three weaknesses against its proposal, and applied unequal evaluation standards concerning sample task order schedule compliance.

The evaluation of an offeror’s proposal is a matter within the agency’s discretion. IPlus, Inc., B-298020, B-298020.2, June 5, 2006, 2006 CPD ¶ 90 at 7, 13. In reviewing an agency’s evaluation, our Office will not reevaluate proposals; instead, we will examine the record to ensure that it was reasonable and consistent with the solicitation’s stated evaluation criteria and applicable procurement statutes and regulations. Metro Mach. Corp., B-402567, B-402567.2, June 3, 2010, 2010 CPD ¶ 132 at 13; Urban-Meridian Joint Venture, B-287168, B-287168.2, May 7, 2001, 2001 CPD ¶ 91 at 2. An offeror’s disagreement with the agency’s evaluation is not sufficient to render the evaluation unreasonable. Ben-Mar Enters., Inc., B-295781, Apr. 7, 2005, 2005 CPD ¶ 68 at 7. We see no errors in the agency’s evaluation.

Concerning CSG’s allegation that the 2016 SSEB evaluation was unreasonable where it failed to recognize two significant strengths which had been assessed by the 2015 SSEB, there is nothing per se unreasonable about a new technical evaluation panel, convened for a reevaluation pursuant to corrective action, reaching different conclusions from the prior evaluation panel. Corps Solutions, LLC, B-409298.2, Aug. 21, 2014, 2014 CPD ¶ 244 at 7-8. Our Office has long recognized that different evaluation panels may reasonably reach different conclusions regarding the quality of an offeror’s proposal given the subjective judgment necessarily exercised by evaluators. Constellation NewEnergy, Inc., B‑409353.2, B-409353.3, July 21, 2014, 2014 CPD ¶ 219 at 9.

In this case, the record shows that the 2015 panel identified two significant strengths in its evaluation of CSG’s proposal, one relating to CSG’s damage mitigation approach and a second relating to its placement of safety training on its schedule. The 2016 SSEB recognized CSG’s damage mitigation approach, but concluded that because the contractor was responsible for all site damage and was required to repair damage under the RFP, CSG’s approach represented compliance with the requirements of RFP and did not constitute a strength. With respect to safety training, the 2016 SSEB assigned CSG a strength, as opposed to a significant strength, on the basis that “[t]he Technical Approach as a whole was well organized with identification of major tasks to be performed and recognition of safety concerns for the project,” which encompassed CSG’s safety training schedule. AR, Tab 6b, 2016 SSEB Report, at 22. We see nothing unreasonable with the SSEB’s conclusions here. CSG’s disagreement with the SSEB’s conclusions does not provide a basis for our Office to conclude that the evaluation was unreasonable. Mil-Mar Century Corp., B‑407644, B-407644.2 et. al., Jan. 17, 2013, 2013 CPD ¶ 39 at 6.  (Construction Services Group, Inc. B-412343.3: Feb 27, 2017)


The protester argues that the agency’s evaluation of SAWTST’s proposal under the mission capability factor is flawed because the proposal did not merit a rating of good. In support of this allegation, Glacier contends that SAWTST’s technical proposal should have been evaluated as unacceptable because the [technical evaluation team] TET rejected the explanation provided by SAWTST’s to support one of its’ proposed staffing methodologies.

The evaluation of an offeror’s proposal is a matter within the agency’s discretion. National Gov’t Servs., Inc., B-401063.2 et al., Jan. 30, 2012, 2012 CPD ¶ 59 at 5. An offeror’s disagreement with the agency’s judgment, without more, is insufficient to establish that the agency acted unreasonably. STG, Inc., B‑405101.3 et al., Jan. 12, 2012, 2012 CPD ¶ 48 at 7. While we will not substitute our judgment for that of the agency, we will question the agency’s conclusions where they are inconsistent with the solicitation criteria and applicable procurement statutes and regulations, undocumented, or not reasonably based. Public Commc’ns Servs., Inc., B-400058, B-400058.3, July 18, 2008, 2009 CPD ¶ 154 at 17.

In reviewing an agency’s evaluation, we do not limit our consideration to contemporaneously-documented evidence, but instead consider all the information provided, including the parties’ arguments, explanations, and any hearing testimony. Remington Arms Co., Inc., B-297374, B-297374.2, Jan. 12, 2006, 2006 CPD ¶ 32 at 10. While we accord greater weight to contemporaneous source selection materials as opposed to judgments made in response to protest contentions, post-protest explanations that provide a detailed rationale for contemporaneous conclusions, and simply fill in previously unrecorded details, will generally be considered in our review of the rationality of selection decisions--so long as those explanations are credible and consistent with the contemporaneous record. NWT, Inc.; PharmChem Labs., Inc., B-280988, B‑280988.2, Dec. 17, 1998, 98-2 CPD ¶ 158 at 16 (citing Boeing Sikorsky Aircraft Support, B-277263.2, B‑277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15).

Based on our review of the record, we find the agency’s technical evaluation of SAWTST under the mission capability factor, and specifically under the management approach subfactor, to be unreasonable. The RFP required an offeror’s management approach to be based upon the staffing levels recommended by the agency. RFP at 108. To the extent that an offeror’s staffing plan deviated from the agency-provided baseline staffing levels, the RFP required those deviations to be justified in the cost narrative section of an offeror’s proposal. Id. The solicitation expressly advised that the Army would evaluate an offeror’s management approach as it related to the analysis of baseline staffing. Id. at 117.

Here, SAWTST’s initial offer was evaluated as deviating from the agency-provided baseline staffing level. AR, Tab 9, Final Cost Evaluation, at 43. These deviations were enough of a concern to the Army that they were addressed in the evaluation notice that the agency sent to SAWTST during discussions. Id. SAWTST responded to the evaluation notice, but in spite of the firm’s attempts to explain how the Army’s concerns would be addressed, the [cost evaluation team] CET’s final evaluation report clearly states that the TET rejected one of the two staffing methodologies proposed by SAWTST in response to the Army’s evaluation notice. Specifically, the Army’s TET rejected SAWTST’s explanation for the firm’s decision to propose [DELETED]. Although the CET’s final evaluation documents the fact that the TET rejected this aspect of SAWTST’s proposal, the TET’s final evaluation report is devoid of any discussion explaining what consideration and weight it gave to this concern. Compare AR, Tab 9, Final Cost Evaluation, at 43, with Tab 19, Final SAWTST Technical Evaluation, at 1‑8.

In this regard, we find the agency’s evaluation of SAWTST’s proposal under the mission capability factor and more specifically, under the management approach subfactor to be unreasonable because the record reflects that even though the TET rejected one of SAWTST’s proposed staffing methodologies, it failed to acknowledge that rejection or otherwise explain how that rejection factored into its technical evaluation of the awardee’s proposal. That is, the agency has not explained why SAWTST was rated as good under the mission capability factor despite the TET’s decision to reject one aspect of the firm’s staffing plan.

In response to this allegation, the agency argues that it was reasonable for the Army to assign a rating of good to SAWTST’s proposal under the mission capability factor because only one portion of one sub-factor was rejected by the agency, especially when considering that this rejected portion of SAWTST’s proposal was addressed by the Army through its cost realism analysis and because the rejected staffing deviations reflected only a fraction of what the agency assessed in order to determine its mission capability rating. As discussed above, the RFP required the Army to evaluate an offeror’s management approach as it related to the offeror’s baseline staffing, under the mission capability management approach subfactor. There is nothing in the contemporaneous record to support the agency’s position that it was reasonable for the TET to assign a good rating to SAWTST’s proposal under the mission capability factor, even though the TET rejected one of SAWTST’s proposed staffing methodologies. We sustain the protest because while the TET concluded that one of SAWTST’s staffing methodologies should be rejected, the contemporaneous record does not explain what weight or effect the TET gave to this consideration when assigning the good rating to SAWTST’s proposal under the mission capability factor, and specifically the management approach subfactor.  (Glacier Technical Solutions, LLC B-412990.2: Oct 17, 2016)


Mission Support

ASRC argues that the Air Force’s reevaluation of Aleut’s proposal under the mission support subfactor is unreasonable because the three areas of concern that formed the basis of the deficiency–involving training and certifications, minor ship repairs, and the de-mineralized water system--remain. ASRC maintains that, as the Air Force did not conduct discussions and obtain revised proposals after our Office sustained its previous protest, the agency reasonably could not find that Aleut’s proposal met the solicitation’s requirements with respect to the three identified areas of concern.

In reviewing an agency’s evaluation of proposals, we examine the record to determine whether the agency’s evaluation was reasonable and in accordance with the RFP’s evaluation criteria, along with applicable procurement statutes and regulations. Cherry Rd. Techs.; Elec. Data Sys. Corp., B-296915 et al., Oct. 24, 2005, 2005 CPD ¶ 197 at 6.

Training and certifications

ASRC maintains that the Air Force unreasonably determined that Aleut’s proposal addressed the requirement to provide personnel with the required training and certifications, as well as training and certification programs for various crane personnel in accordance with NAVFAC P-307 (PWS § 1.10.8.6). Protest at 10. ASRC further argues that Aleut’s proposal simply repeats the PWS requirement without identifying the personnel that it will provide, or how Aleut will provide the training. ASRC Comments at 6-7.

The Air Force states that Aleut’s identification of the required certifications and staff proposed to have those certifications was an acceptable approach to meeting the requirements of PWS § 1.10.8.6. The agency further states that Table 5 of Aleut’s proposal included the appropriate certifications and training qualifications for all personnel associated with providing crane management services, including the proposed work control supervisor (which the agency asserts is also the ordnance manager), the port/wharf supervisor, and the engineer. AR Legal Memorandum at 8.

The record shows that the Air Force’s reliance on Table 5 of Aleut’s proposal is unreasonable. Table 5, which is titled “Team Aleut Skill and Staffing Level Mix” contains three columns that include information on: (1) labor category, full-time equivalents, and the responsibilities assigned to that labor category by PWS paragraph; (2) an explanation of the skill mix and staffing approach; and (3) certification and training requirements. While Table 5 lists the certification and training requirements, it does not identify whether or not the individuals proposed for the labor categories meet these qualifications. For example, for the work control supervisor, the table lists “n/a” for certifications and lists training on the Air Force’s automated work management system, Maximo, as the only required training. AR, Tab 24, Aleut’s Final Proposal, at 29. Moreover, we find nothing in Aleut’s proposal to support the agency’s assertion that the port/wharf supervisor and the ordnance supervisor are the same individual. In comparison, the narrative, supported by Figure 5, states that Mr. [A], the Mission System Operations & Maintenance Division Manager, would be cross-utilized as the Ordnance Manager. See id. at 20, 22.

For the port/wharf supervisor, under the heading for certification and training requirements, Table 5 lists NAVFAC P-307, Chief of Naval Operations 5090.1, and other required training, but again does not state that the proposed individuals meet the qualifications for the position. Id. at 30. Only for the engineer does Aleut’s proposal state that the proposed individual actually has the required certifications. In Table 14, Aleut proposed the engineer as the certifying official required by PWS § 1.10.8.5, noting that “Team Aleut will designate a qualified/certified [Deleted] Official (currently the [Deleted]) to oversee the management and administration of the program in the areas of instructing, examining and certification of crane operators.” Id. at 78.

With regard to ASRC’s assertions that Aleut did not demonstrate how it would meet the requirements of PWS § 1.10.8.6 to provide training and certification programs for all crane personnel, the agency states that Aleut’s identification of the need for appropriate training and certifications was sufficient to be compliant with the RFP and constituted an acceptable approach to the PWS section in question. The Air Force further states that the RFP did not require the offeror to provide a copy of its training program, but rather to comply with RFP § L.2.1.1.2, which required offerors to provide a listing of personnel certifications and personnel training requirements. AR Legal Memorandum at 8-9.

We agree with the protester that the Air Force unreasonably determined that Aleut’s proposal met the requirements of PWS § 1.10.8.6. Read as a whole, the RFP advised offerors that proposals would be evaluated under the mission support factor for demonstrating the ability to, among other things, provide training and certification programs for all crane operators, crane inspector, crane mechanics, crane electrician, load test director, and certifying official in accordance with NAVFAC P‑307. See RFP at 190, 231. Here, Table 5 of Aleut’s proposal states:

Provide training and certification programs for all crane operators, crane inspector, crane mechanics, crane electrician, load test director and certifying official IAW [in accordance with] NAVFAC P-307. This includes ordnance certification IAW NAVFAC P-307, PPE, Overhead Bridge Crane Safety, Hydra-Set Training.

AR, Tab 24, Aleut’s Final Proposal, at 30. As we stated in our prior decision:

[T]he offeror was required to provide training and certification programs for all crane operators, crane inspectors, crane mechanics, crane electricians, load test directors and certifying officials. Simply stated, nothing in the narrative references relied on by the agency in responding to the protest demonstrates that Aleut’s proposed work control supervisor, port/wharf supervisor, or engineer possesses the necessary training or certifications themselves, and nothing in the narrative describes how Aleut will provide the training (other than ordnance handling training) required by the PWS to its applicable personnel. (Emphasis added.)

ASRC Comms., Ltd., supra, at 7. While an agency reasonably may come to a different conclusion in reevaluating proposals, see IAP World Servs., Inc., infra, our review of the record shows that there was no reasonable basis for the agency to have concluded that this concern was resolved. Moreover, the Air Force erroneously relies on RFP section L.2.1.1.2 to support its position as to the propriety of accepting lists of certifications and training requirements to meet the requirements of PWS § 1.10.8, as section L.2.1.1.2 provides instructions for the program management subfactor, not the mission support subfactor. See id. at 175.

Based on the record before us, we cannot determine the impact that the awardee’s failure to provide an approach to provide personnel with the required training and certifications and training and certification programs for various crane personnel in accordance with the solicitation would have been on the awardee’s proposal or on the agency’s tradeoff decision. We therefore conclude that ASRC was prejudiced by the flawed evaluation and sustain this basis of protest. See, e.g., Information Ventures, Inc., B-297276.2 et al., Mar. 1, 2006, 2006 CPD ¶ 45 at 6.

Minor ship repairs

With respect to the issue relating to Aleut’s proposal of personnel with skill sets necessary to perform minor ship repairs (PWS § 1.10.3), ASRC argues that Aleut’s proposed personnel lack the skills necessary to perform all of the work--specifically carpentry and metal work--required under the PWS. Protest at 9.

The fact that a reevaluation varies, or does not vary, from an original evaluation does not constitute evidence that the reevaluation was unreasonable. It is implicit that a reevaluation could result in different findings or conclusions. IAP World Servs., Inc., B-406339.2, Oct. 9, 2012, 2012 CPD ¶ 287 at 3-4. The overriding concern for our Office’s review is not whether the evaluation results are consistent with the earlier evaluation results, but whether they reasonably reflect the relative merit of the offers. Spectrum Comm, Inc., B-412395.2, Mar. 4, 2016, 2016 CPD ¶ 82 at 7.

The Air Force states that it relied on Tables 14 and 5, as well as Figure 5, of Aleut’s proposal to determine that the requirements of PWS § 1.10.3 were met. AR, Tab 39, Proposal Analysis Report (Re-Eval.), at 64; AR Legal Memorandum at 16. Table 14 proposed using an [Deleted], and a [Deleted] to meet the requirements of PWS § 1.10.3, and stated that additional support could be made available within the firm’s [Deleted] or from its subcontractor’s reach-back capabilities. The evaluators concluded that Figure 5, which identified Aleut’s corporate support services, showed that Aleut’s [Deleted] could provide the personnel--specifically sheet metal workers and carpenters –to perform minor ship repairs. See AR Legal Memorandum at 16‑17; AR, Tab 44, Decl. of Technical Evaluator Mr. G, at 3-4.

Based on the record before us, we conclude that the Air Force reasonably found Aleut’s proposal to have met the requirement. With respect to PWS § 1.10.3, the RFP required offerors to demonstrate the ability to provide minor ship repairs including minor electrical, metal or carpentry work not associated with vessel structural integrity or seaworthiness. See RFP at 190, 230. The protester does not dispute that the awardee’s proposal demonstrated in Table 14 that it proposed personnel skilled in minor electrical work, based on job titles. Table 14 also referenced Aleut’s [Deleted] as a source of additional support. AR, Tab 24, Aleut’s FPR, at 77. Thus the evaluators reasonably looked to Figure 5, which listed staffing for the various [Deleted]. As noted above, Figure 5 included a carpenter and a sheet metal worker under the [Deleted]. Although ASRC contends that the RFP prohibited the agency from looking to other sections of Aleut’s proposal to determine whether Aleut met the solicitation requirements, we see nothing in the RFP that would preclude the agency from doing so. In the absence of solicitation language expressly precluding the consideration of certain proposal information, an agency properly may evaluate a proposal by reading it as a whole. See Vinculum Solutions, Inc., B-406760, B-406760.2, Aug. 22, 2012, 2012 CPD ¶ 249 at 6.

De-mineralized water system

With respect to the issue of Aleut’s ability to meet the requirements of PWS § 1.10.4, ASRC argues that Aleut’s proposal failed to provide an approach to maintaining the Trident Wharf de-mineralized water system. Protest at 9-10. The protester asserts that Aleut’s use of a checklist to perform pre-arrival inspections does not explain how Aleut will actually maintain the water system. Comments at 5.

The record shows that the source selection evaluation board (SSEB) concluded that Aleut’s use of checklists for all required systems, including the demineralized water system, was an acceptable approach to maintaining the demineralized water system. The SSEB primarily relied on Table 14 of Aleut’s proposal as well as narrative generally addressing the requirements of PWS § 1.10, which stated that it would use detailed pre-arrival inspections, checklists, and sampling of the demineralized water system for pH, resistivity, conductivity, and other features. AR, Tab 39, Proposal Analysis Report (Re-Eval.), at 63-64. One evaluator explains that Aleut’s proposed use of checklists can reasonably be accepted as a maintenance approach because checklists are a key component of ensuring operational readiness and will identify maintenance needs. AR, Tab 44, Decl. of Technical Evaluator Mr. G, at 5. Although the protester maintains that the awardee’s proposed use of checklists does not constitute an approach as required by the solicitation, the protester’s disagreement with the agency’s judgment does not render that judgment unreasonable. Rome Research Corp., B-291162, Nov. 20, 2002, 2002 CPD ¶ 209 at 4.  (ASRC Communications, Ltd. B-412093.4: Jul 1, 2016)


The first weakness assigned to Encentric’s quotation under the personnel factor was based on Encentric’s failure to clearly demonstrate that its proposed project manager satisfied the minimum requirements for at least five years of project management experience and at least three years of project management experience on a PeopleSoft project. AR, Tab 8, Consensus Technical Evaluation, at 14. As noted above, the evaluators found that while Encentric’s quotation stated that the proposed project manager had over twenty years of IT project management experience, the work experience described in the candidate’s resume indicated only two years of qualifying project management experience. Id. Further, according to the TEP chairperson, the TEP concluded that while the proposed project manager had experience with PeopleSoft, she did not have “a project management role in any of her PeopleSoft experience as she only held responsibilities commensurate to an analyst position[;]” thus, she did not have “experience managing projects or staff while working on a People[S]oft project.”[6] AR, Tab 3, TEP Statement at 1.

In challenging this weakness, the protester first argues that the agency relied on an unstated evaluation criterion when it concluded that the proposed project manager did not have sufficient experience that matched the description of the project management responsibilities to be performed under the task order. AR, Tab 8, Consensus Technical Evaluation, at 14. According to Encentric, the agency relied on an unstated evaluation criterion when it essentially faulted the protester for failing to copy and paste all forty of the RFQ’s individual bullet points into its description of its project manager’s experience. Comments at 7. We disagree.

When evaluating a quotation, an agency properly may take into account specific, albeit not expressly identified, matters that are logically encompassed by or related to the stated evaluation criteria. Sigmatech, Inc., B‑410933, March 18, 2015, 2015 CPD ¶ 110 at 8. Here, the RFQ expressly described the duties of a project manager, and set requirements for years of experience in that position. The fact that the TEP relied upon that description when it attempted to discern whether any of the work experience listed in the resume qualified as project manager experience is consistent with the terms of the solicitation and does not involve reliance on an unstated criterion. RFQ at 46.

Additionally, the record demonstrates that, contrary to the protester’s assertion, the agency did not require it to address each bullet point from the description in order to demonstrate that its proposed key personnel met the minimum experience requirements. In fact, the TEP credited the protester’s proposed project manager with two years of project manager experience based on a brief description of the proposed project manager’s employment from September 2001 to August 2003. AR, Tab 8, Consensus Technical Evaluation, at 14.

The protester next argues that, had the agency carefully read the candidate’s resume, the agency would have found that it clearly showed that she had at least six years of experience performing project management tasks. Comments at 8. Specifically, the protester argues that the agency should have credited the proposed project manager with project management experience based on her employment as a senior business systems analyst between August 2003 and August 2007. Protest at 17. In response, the agency argues that while the candidate’s resume indicated that she managed a project as a senior business systems analyst, the resume did not provide sufficient information to allow the TEP to determine whether the candidate had the type of project manager experience required by the solicitation, which included “experience managing people . . . team performance, contracts and company resources.” AR, Tab 3, TEP Statement at 2.

Essentially, the protester’s argument here is based upon the assumption that the agency should be required to cobble together and draw broad inferences from the information provided in the resumes in order to conclude that the requirements of the RFQ were met. We have previously rejected that argument where, as here, the solicitation required that resumes clearly demonstrate how the proposed individuals meet the required experience level. See Consummate Computer Consultants Sys., LLC, supra, at 6. Ultimately, it is a vendor’s responsibility to submit an adequately written quotation that establishes its technical capability and the merits of its proposed approach, and allows for a meaningful review by the procuring agency in accordance with the evaluation terms of the solicitation. Id.

Here, while the resume contained a bare assertion that the candidate had “over 20 years of information technology . . . project management in the commercial, state, and public sectors with the past ten years emphasizing PeopleSoft implementations and support for the federal government,” the accompanying work histories did not clearly demonstrate that the proposed project manager had the experience required by the RFQ. AR, Tab 7, Encentric’s Quotation, at 22. As such, we find no basis upon which to conclude that the agency’s assignment of a weakness in this regard was unreasonable.

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The protest is denied.  (Encentric, Inc. B-412368.3: Apr 19, 2016)  (pdf)


Arctic Slope contends that the agency’s evaluation of technical proposals was unequal and otherwise unreasonable. In reviewing protests of an agency’s evaluation and source selection decision, our Office will not reevaluate proposals; rather, we review the record to determine whether the evaluation and source selection decision are reasonable and consistent with the solicitation’s evaluation criteria, and applicable procurement laws and regulations. M&S Farms, Inc., B‑290599, Sept. 5, 2002, 2002 CPD ¶ 174 at 6. Here, we have considered all of the protester’s arguments. For the reasons discussed below, we conclude that the agency’s evaluation of proposals was unreasonable.

Undue Emphasis on Corporate Experience

Arctic Slope asserts that the agency in its evaluation afforded undue weight to corporate experience. Protest at 63-64. In this regard, the RFP provided that corporate experience was one of six technical subfactors, and was less important than either the technical approach or management plan subfactors. RFP at 68. According to the protester, the agency unreasonably elevated the importance of corporate experience, such that it was considered substantially more important than any other evaluation factor. The agency responds that while the solicitation required offerors to demonstrate their present understanding of the requirement and to discuss how they would perform the work in the future, the TEP nevertheless evaluated offerors’ past experience because “past work and experience is the foundation of present understanding and of the ability to perform work in the future.” AR, Tab 33, Revised TEP Report, at 49.

In J.A. Jones Mgmt. Servs., Inc., B-254941.2, March 16, 1994, 94‑1 CPD ¶ 244, we held that where, as here, the RFP contains separate and independent technical evaluation factors encompassing separate subject areas, with each factor assigned separate weights under the RFP’s evaluation scheme, an agency may not double count, triple count, or otherwise greatly exaggerate the importance of any one listed factor. In other words, where an RFP lists a number of evaluation factors or subfactors of stated importance, a single one cannot be accorded more than the weight prescribed in the RFP’s evaluation methodology by the agency repeatedly considering the same factor in conjunction with the other major factors. Id. at 6‑9; see Computer Sciences Corp., et al., B-408694.7 et al., Nov. 3, 2014, 2014 CPD ¶ 331 at 19 n.11; GlassLock, Inc., B-299931, B-299931.2, Oct. 10, 2007, 2007 CPD ¶ 216 at 6; Management Servs., Inc., B-206364, Aug. 23, 1982, 82-2 CPD ¶ 164; Earth Envtl. Consultants, Inc., B‑204866, Jan. 19, 1982, 82-1 CPD ¶ 43; The Center for Educ. and Manpower Res., B‑191453, July 7, 1978, 78‑2 CPD ¶ 21 (protest sustained where agency considered offeror’s experience under all of the other evaluation criteria rather than restricting it to the experience evaluation factor). Here, the record shows that the agency effectively gave corporate experience, one of the six technical subfactors, undue weight in evaluating each of the other technical subfactors through the lens of corporate experience, and in doing so, competitively disadvantaged Arctic Slope, which was not an incumbent offeror.

For example, the TEP assigned a weakness to Arctic Slope’s proposal under the staffing subfactor for risks associated with Arctic Slope not being able to hire a sufficient number of incumbent personnel. In its initial evaluation, the TEP assigned a weakness to Arctic Slope’s proposal to hire the majority of the incumbent workforce as employees, rather than as independent contractors. In its prior protest, Arctic Slope challenged this weakness, arguing that, under the terms of the solicitation, this approach was the only acceptable approach. During its corrective action, the TEP revised its report to explain that, while attempting to hire incumbents was a reasonable initial step, Arctic Slope’s proposal had very little discussion of what it will do if its first step of attempting to hire incumbents does not prove successful, and that Arctic Slope’s proposal “failed to provide any details regarding its contingency plan.” AR, Tab 33, Revised TEP Report, at 66. Arctic Slope contends that the agency held other offerors to a lower standard and did not require the same level of detail regarding staffing and recruiting resources as that required of Arctic Slope. Protest at 30-31.

The record indicates that the evaluation in this regard was unequal, and resulted from the consideration of corporate experience in other than the corporate experience subfactor. As the protester notes, its proposal expressly addressed how it would staff the project if it was unable to hire a sufficient number of incumbent personnel. Specifically, Arctic Slope’s proposal contained several pages of discussion of the firm’s “contingency plan.” AR, Tab 20, Arctic Slope Technical Proposal, at 58-62. The proposal identified nine sources for identifying potential staff, including the resume database of Arctic Slope’s corporate parent, which contains over 150,000 candidate resumes. Id. at 59. While the agency contends that this approach was insufficient because Arctic Slope’s proposal failed to “identify a single individual, let alone the source, skill, or ability of any individual . . . purportedly identified in this database,” AR at 16, Arctic Slope’s proposal provided that:

We populate the database by sourcing candidates through the external and internal organizations, retired investigator websites, and traditional employment search engines. We have posted AFISS [Asset Forfeiture Investigative Support Services] specific requisitions on several of these sites already . . . . The database includes AFISS candidates across all contract labor categories . . . . In 2013-2014, [DELETED]% of our candidates within that database held a clearance and [DELETED]% of the cleared individuals held a TS/SCI [top secret/sensitive compartmented information] or higher clearance.

AR, Tab 20, Arctic Slope Technical Proposal, at 56, 59.

Further, other offerors’ proposals were not held to this exacting standard. Rather, the agency relied on offerors’ corporate experience to justify higher ratings under the staffing subfactor. For example, [DELETED] also proposed as part of its staffing plan to hire incumbents as employees and back-fill with individuals from an applicant pool containing more than 1,000 resumes, including [DELETED] pre-screened candidates that either have a top secret clearance or are eligible to have one reinstated. AR, Tab 12, [DELETED] Technical Proposal, at 56. As a result, [DELETED] was assigned the following strength:

[DELETED]’s Staffing Plan is complete, thorough, and highly detailed. [DELETED] maintains a database of skilled and qualified candidates with secret or top secret clearances, performs a continuous recruitment effort to keep the database updated, and recruits utilizing websites targeted at former law enforcement agents. The eight-step staff recruitment and deployment process set forth . . . [in] its proposal has been successfully utilized and refined in support of the PACS contract.

AR, Tab 33, Revised TEP Report, at 18.

The agency provides no reasonable justification for the difference in treatment between the two offerors, and cites no substantive difference between the two offerors’ contingency plans. Rather, the record shows that the evaluators gave [DELETED] credit for its prior experience under the incumbent contract. In this regard, the agency stated that the “TEP is aware that [DELETED]’s primary business is providing the highly specialized asset forfeiture financial services that this RFP was seeking, so [DELETED]’s resumes actually mean something, while Arctic has very limited experience and is offering resumes of a corporate parent that . . . does not do this kind of specialized work at all.” AR at 19. However, both proposals only identified key personnel, and the record contains no indication that the evaluators had access to the resumes in [DELETED]’s 1,000-resume database or the resumes in Arctic Slope’s 150,000-resume database, or that there was any other basis on which the TEP could conclude that the resumes in [DELETED]’s database were superior to those in Arctic Slope’s database. Thus, despite apparently similar proposal approaches, Arctic Slope’s staffing proposal was considered to be inferior to that of another offeror based solely on the fact that the other offeror could be presumed to have better candidates in its databases or candidate pool due to its corporate experience in this area.

In sum, the record indicates that rather than limiting the evaluation of corporate experience to that subfactor, the agency penalized nonincumbent offerors such as Arctic Slope for a lack of experience when evaluating under the other technical evaluation subfactors. The agency thus greatly exaggerated the significance of the corporate experience subfactor, which resulted in an unreasonable evaluation that was not in accordance with the evaluation scheme set forth in the solicitation.

Unequal Treatment

Arctic Slope also protests that the agency’s evaluation was unequal in several other respects. For example, the protester challenges the agency’s assignment of strengths and weaknesses in evaluating whether teams demonstrated prior experience working together under the corporate experience subfactor. Arctic Slope also challenges the agency’s evaluation under the staffing plan subfactor, noting that Arctic Slope’s proposal was assigned a weakness based on proposal language that was nearly identical to language in another offeror’s proposal that did not receive a weakness. Arctic Slope also notes several areas of the evaluation in which incumbent offerors were given the benefit of the doubt, while nonincumbent offerors such as Arctic were held to a higher standard. See Comments at 24.

It is a fundamental principle 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. Cubic Applications, Inc., B‑411305, B-411305.2, July 9, 2015, 2015 CPD ¶ 218; Rockwell Elec. Commerce Corp., B‑286201 et al., Dec. 14, 2000, 2001 CPD ¶ 65 at 5. Further, where an agency treats offerors unequally by, for example, reading some offerors’ proposals in an expansive manner and resolving doubt in favor of the offeror, while reading other offerors’ proposals narrowly and applying a more exacting standard that requires affirmative representations within the four corners of the proposal, we have found such evaluations to involve disparate treatment. Lockheed Martin Information Systems, B-292836 et al., Dec. 18, 2003, 2003 CPD ¶ 230 at 11-12.

Here, the record indicates that when evaluating the proposals of the competitive range offerors, the agency tended to be expansive, resolving doubts in favor of the offeror. In contrast, when evaluating the proposal of Arctic Slope, the agency tended to read proposals narrowly and apply a more exacting standard that required affirmative representations within the four corners of the proposal.

For example, in evaluating the resume of RA’s proposed project manager under the key personnel subfactor, the TEP was willing to assume that the project manager proposed by RA, whose proposal was included in the competitive range, had experience not identified in his resume. In this regard, the RFP described the education and experience requirements for the key personnel position of project manager as follows: “An undergraduate degree is required (graduate degree preferred and/or significant experience with Forfeiture, Financial, or White Collar investigations). Experienced in managing task orders of similar size, scope and complexity.” RFP Attach. 2, AFISS Labor Category Descriptions at 1. The resume for RA’s proposed project manager stated that the individual had 25 years of experience working for the FBI, including duties such as: (1) managing Asia Pacific Rim investigations and intelligence for terrorism; (2) developing and managing broad-based emergency response initiatives; (3) developing private sector and local law enforcement terrorism prevention programs for special entertainment groups, such as the Emmys, Oscar, and Golden Globe awards; (4) managing the FBI’s global telecommunications and computer networks; (5) crisis management with kidnappings, hostage situations, and a terrorist attack on an airport; and (6) planning and monitoring the construction of a multi-million dollar local network connection center. AR, Tab 6, RA Technical Proposal, at 34. Although the RA key employee’s resume contained no reference to experience with forfeiture, financial or white collar investigations, and also did not indicate a graduate degree, this offeror’s staffing plan was assigned a strength for proposing a contract manager and project managers that “are well qualified with significant asset forfeiture and law enforcement experience.” AR, Tab 33, Revised TEP Report, at 44.

Arctic Slope’s proposed project manager, on the other hand, submitted a resume that stated the following: “17 plus years as a Federal Special Agent and IRS Revenue Officer conducting various security-related investigations that include financial.” However, despite a specific reference to experience in conducting financial investigations in the resume, the agency assigned the following weakness to Arctic Slope’s staffing proposal: “Proposed Project Manager . . . has limited financial investigative experience.” AR, Tab 33, Revised TEP Report, at 65.

During its corrective action, the TEP’s evaluations and conclusions remained largely unchanged from the initial evaluation. However, the TEP added additional sections to its report addressing specific issues raised in the initial round of protests. In addressing this apparent unequal treatment between an offeror included in the competitive range and Arctic Slope, the TEP explained that the resume for RA’s proposed project manager was considered to meet the experience requirements because “[t]he TEP, based on its collective knowledge and experience working with FBI offices in major cities, is confident that these jobs would have given [the individual] in-depth experience in financial, white collar, and forfeiture work.” AR, Tab 33, Revised TEP Report, at 67. In other words, in evaluating RA’s key personnel, the TEP was willing to assume “in depth” relevant experience not listed in the key personnel’s resume. On the other hand, despite a specific reference in Arctic Slope’s proposed project manager’s resume to experience with financial investigations, the TEP complained that “his resume does not . . . provide any specific details regarding the nature or extent of his experience with financial investigations other than to mention them.” AR, Tab 33, Revised TEP Report, at 66. Thus, the agency read RA’s proposals in an expansive manner, resolving doubt in favor of the offeror, while reading Arctic Slope’s proposal narrowly and applying a more exacting standard that required affirmative representations within the four corners of the proposal. This amounted to an unequal evaluation. See Lockheed Martin Information Systems, supra.

In another example, Arctic challenges a weakness the TEP assigned its proposal under the corporate experience factor. Protest at 32. As set forth above, the RFP provided that if a team was proposed, offerors were required to describe the team’s experience working together, particularly under similar contracts with the federal government. RFP at 64. The RFP further provided that the agency would give added preference where the team had experience working together, particularly under similar contracts with the federal government. RFP at 69.

Arctic Slope proposed to team with two other companies: [DELETED] and [DELETED]. Arctic Slope’s proposal demonstrated that it had experience working with [DELETED] under several contracts, including an IRS asset forfeiture contract, an EPA information management center contract (EPA IMCS 3), and a DEA contract involving investigative and analytical support for the El Paso Intelligence Center. AR, Tab 20, Arctic Slope Technical Proposal, at 100. Arctic Slope did not indicate prior experience working with its other teammate, [DELETED].

The evaluators assigned two weaknesses to Arctic Slope’s proposal under the corporate experience subfactor, both of which related to experience working with teammates:

a. While ASMS and [DELETED] have established relationships and have worked together extensively in the past, those projects appear to be smaller in size and scope than AFISS.[]

b. ASMS does not indicate the extent of its experience working with the proposed team member [DELETED].

AR, Tab 33, Revised TEP Report, at 69.

In contrast, another offeror whose proposal was included in the competitive range, also proposed to team with a company with which it had not previously worked. Specifically, [DELETED] proposed to team with two companies. [DELETED]’s proposal explained with regard to the first teammate, [DELETED], that the two companies had over a decade of experience working together, including work under the incumbent PACS contract. AR, Tab 6, [DELETED] Technical Proposal, at 47. In contrast, the proposal did not indicate any prior experience working in any context with RA’s second teammate, [DELETED]. See AR, Tab 6, [DELETED] Technical Proposal, at 47-49. The evaluators, however, did not assign a weakness to [DELETED]’s proposal for failure to indicate the extent of its experience working with [DELETED] as they did with Arctic Slope. Rather, the evaluators assigned the following strength:

[DELETED] clearly addresses its existing relationships with its teaming partners and specifically how the organizations have worked together in the past on similarly scoped projects.

AR, Tab 33, Revised TEP Report, at 45.

In its corrective action, the agency did not revise the above strengths and weaknesses, but instead sought in its revised TEP report to provide an explanation for this apparent unequal treatment. The report provided four “very important facts” that the evaluators believed justified the differing evaluation results with respect to Arctic Slope and [DELETED]: (1) although [DELETED] and its teammate have not previously worked together, “[DELETED] has established, through its proposal and through the Department’s extensive real world experience with [DELETED]’s performance under the current PACS contract, that [DELETED] is fully capable, by itself, of performing all work required under the AFISS procurement”; (2) because [DELETED] is fully capable of performing the work by itself, [DELETED] did not propose its teammate to perform, or assist in performing, the day-to-day work required by the AFISS solicitation, and [DELETED]’s teammate instead will be providing analytical and reports expertise; (3) “from past experience, the TEP understood [DELETED]’s reporting role as proposed by [DELETED] clearly, as [DELETED] is currently providing financial management services to AFMS under a different contract”; and (4) the teammate “has in-depth experience with and knowledge of the Department’s Asset Forfeiture Program.” AR, Tab 33, Revised TEP Report, at 73‑74. Thus, the TEP concluded that since both [DELETED] and the teammate with which it had never worked both had “considerable knowledge and experience regarding the AFP [asset forfeiture program],” the assignment of a weakness was not appropriate here.

The evaluation in this regard was unreasonable. As an initial matter, we note that under the language of the solicitation, offerors were to be given added preference for demonstrating prior experience working with teammates on similar projects, not penalized for failing to demonstrate such prior experience working together. In this regard, we do not believe that the assignment of a weakness in this area is encompassed by the RFP’s promise of “added preference” for those teams that demonstrated experience working together. That is, the RFP led offerors to believe that the proposal of a team with no prior experience working together on similar projects would be fully acceptable, and would not result in a downgrading of the proposal. Offerors were not on notice that failure to strive for the “added preference” would result in the assignment of one or more weaknesses. RFP at 69.

Furthermore, nothing in the RFP supported the agency’s unequal approach of assigning two separate weaknesses to Arctic Slope’s proposal for failure to sufficiently demonstrate prior experience working together, while assigning a strength to [DELETED]’s proposal for “specifically [addressing] how the organizations have worked together in the past on similarly scoped projects,” even though [DELETED] had never previously worked with one of its two teammates. While the agency seeks to justify the apparent inconsistency by reference to other considerations, such as [DELETED]’s ability to perform the work itself or the agency’s familiarity with [DELETED]’s experience, the solicitation preference for teaming with firms with which the offeror had previously worked did not provide for considering either of these two factors. Thus, the evaluation in this area was unreasonable.  (Arctic Slope Mission Services, LLC B-410992.5, B-410992.6: Jan 8, 2016)  (pdf)


Export 220Volt challenges the agency’s evaluation of AEEA’s proposal. The protester contends that AEEA’s products fail to comply with the RFP’s technical requirements in certain essential regards: (1) that they lack a one U-Blade USA grounded receptacle; (2) that the universal receptacles are not UL, CSA, or TUV listed; and (3) that AEEA proposed a basic auto-transformer without a polarity warning light.[5] Export 220Volt also contends that the agency failed to conduct its evaluation in accordance with the solicitation, insofar as the RFP required offerors to submit extended specifications and product literature to substantiate compliance, and AEEA submitted only its own representations regarding the alleged features of the proposed products.

The agency argues that its technical evaluation was reasonable because AEEA’s proposal represented on its face that it met all specifications, including those which the protester challenges, and took no exception to any RFP requirements. The agency asserts that it reasonably relied on AEEA’s representations when finding the awardee to be technically acceptable.[6]

AEEA, the awardee, argues that its proposed products meet all RFP requirements, and it provided (in response to the protest) a “Sunkax Technical Sheet” whereby AEEA re-listed the purported product specifications. AEEA Comments, Nov. 23, 2015, Technical Sheet, at 1. AEEA also states that the picture enclosed with its proposal--which the protester contends demonstrates a noncompliant product--was the manufacturer’s standard picture, and that the transformers are “custom design[ed] and provided as per buyer’s requirement.” AEEA Comments, Nov. 23, 2015, at 1.

It is a fundamental principle that a contracting agency must evaluate proposals consistent with the terms of the solicitation and, while the evaluation of offerors’ proposals generally is a matter within the procuring agency’s discretion, our Office will question an agency’s evaluation where it is unreasonable, inconsistent with the solicitation’s stated evaluation criteria, or undocumented. Tantus Techs., Inc., B-411608, B-411608.3, Sept. 14, 2015, 2015 CPD ¶ 299 at 6; Exelis Sys.Corp., B-407111 et al., Nov. 13, 2012, 2012 CPD ¶ 340 at 5. Further, it is well-established that contracting agencies do not have the discretion to announce in the solicitation that they will use one evaluation plan, and then follow another. The Emergence Group, B-404844.7, Feb. 29, 2012, 2012 CPD ¶ 133 at 7. Once offerors are informed of the criteria against which proposals will be evaluated, the agency must adhere to those criteria in evaluating proposals and making its award decision, or inform all offerors of any significant changes made in the evaluation scheme. Id.; TantusTechs., Inc., supra, at 7. Because the record evidences that the agency did not adhere to the announced evaluation scheme in evaluating AEEA’s technical capability, we conclude that the agency’s technical capability evaluation of AEEA’s proposal was unreasonable and improper.

As set forth above, the RFP required each offeror’s proposal to provide “at a minimum, existing product literature to substantiate the acceptability of [its] offered products . . . in accordance with th[e] solicitation.” RFP at 26. Quite simply, the RFP established that for this procurement, an offeror’s self-representations that its proposed products met all technical requirements would be inadequate. The record reflects that AEEA’s proposal failed to include the information required by the RFP. Even if it could be argued that AEEA’s self-prepared “seller bid specifications” met the requirement for extended specifications, it is clear that AEEA failed to provide existing product literature from the manufacturer or third-party source substantiating the acceptability of its offered products. AR, Tab 6, AEEA Proposal, at 1-23. Nor did the picture which AEEA submitted make up for the lack of product literature: the picture does not by itself establish a compliant product; moreover, AEEA acknowledges that the picture is of a generic, Sunkax transformer that does not represent what it intends to deliver. Therefore, we find the State Department’s technical evaluation to be unreasonable because AEEA failed to submit with its proposal the information which the solicitation mandated that offerors provide.

The State Department does not argue that AEEA submitted the required product literature substantiating the acceptability of their proposed products. Rather, the agency contends that the step-down transformers are a common commercial item, and that AEEA self-representations that its products would comply with all technical requirements were sufficient. We disagree. While AEEA’s proposal represented that its offered transformer met all of the specifications, such blanket statements of compliance or an offeror’s belief that its products will meet the agency’s needs are not sufficient where the solicitation requires the offeror to provide product literature to demonstrate that its offered item complies with the specifications listed in the solicitation. See Sea Box, Inc., B-405711.2, Mar. 19, 2012, 2012 CPD ¶ 116 at 5. In sum, the agency’s argument, that it could rely upon AEEA’s self-representations of compliance, has no merit because the solicitation here required AEEA to also provide product literature to substantiate the acceptability of its proposed products, and AEEA failed to do so.  (Export 220Volt, Inc. B-412303.2: Jan 20, 2016)  (pdf)


Evaluation of [key performance attributes] KPAs

PTF raises two essential challenges to the agency’s evaluation of the awardees’ proposals as technically acceptable for non-ballistic materials under the KPAs. Supp. Protest at 2. First, with respect to KPAs 8, 9, and 10, PTF asserts that the language of Section L of the RFP, as set out above, required offerors to provide test documentation for all 13 KPAs demonstrating that their BCSs met all of the requirements defined in RFP, section M, Table 1. Supp. Protest at 6-12. In addition to its contentions regarding test documentation, PTF argues the awardees failed to otherwise meet the requirement of KPA 10, air permeability. Id. at 7-12. PTF also contends that the agency improperly changed certain requirements during award without amending the RFP. Protest at 10-13.

In reviewing a protest challenging an agency’s evaluation, our Office will not reevaluate proposals, nor substitute our judgment for that of the agency, as the evaluation of proposals is a matter within the agency’s discretion. Computer World Servs. Corp., B-410513, B-410513.2, Dec. 31, 2014, 2015 CPD ¶ 21 at 6. However, we will review the record to determine whether the agency’s evaluation was reasonable and consistent with the stated evaluation criteria and with applicable procurement statutes and regulations. Id.

In answering this protest, the agency disputes PTF’s understanding of the RFP’s terms, arguing that Section L must be “read in full context to fully understand what test documentation was required to be provided.” Supp. AR at 3. The agency contends in this regard that the RFP did not require test documentation for KPAs 8, 9, and 10; rather, the agency argues that “test data for most of the non-ballistic requirements in the PD are to be determined during First Article Testing”; and that section L instructs offerors to provide “a technical narrative that clearly addresses and demonstrates” the 13 KPAs. Id. at 1, 3. The agency explains, further, that this means offerors were “required to submit clear declarative statements for each of the thirteen KPAs . . . .” Id. at 3-4.

On this record, even adopting, for purposes of this discussion, the agency’s reading of the RFP concerning test documentation, we find that the agency’s evaluation of the awardees’ narratives addressing the requirements for KPA 10 was unreasonable and not consistent with the stated evaluation criteria.

Again, section L of the RFP required offerors to provide a narrative that clearly addressed and demonstrated compliance with each KPA. RFP, § L, at 71. Section M stated that each KPA would be rated as acceptable or unacceptable, and that, to be considered for an award, a proposal had to be rated as acceptable for all 13 KPAs. Id., § M, at 79.

As shown above, for KPA 10, air permeability, Table 1 lists as the minimum requirements that the product will be tested, and that (1) it will meet the PD requirements, and (2) the testing will be performed using the identified ASTM method. RFP at 80. To address compliance with the KPAs, Carter included a table that reproduced Table 1, with an additional column titled “Requirement Met?” For the air permeability KPA, Carter inserted, as its narrative, a statement that its product had been tested using ASTM D 737, with a reference to attached test results. However, the attachment showed that its product, in fact, did not comply with the [Original Purchase Description] PD requirements. AR, Tab 8a, Carter Initial Tech. Proposal, at 7, 230.

In evaluating the acceptability of Carter’s proposal with respect to this KPA, the agency’s evaluation record simply states “acceptable.” AR, Tab 3a, Carter Tech. Eval., at 3. The agency ignored the test data Carter submitted, stating in the agency report that it did not consider the data because, according to the agency, the data was not required under the RFP. Supp. AR, at 4. We find the agency’s evaluation unreasonable. Given that here, (1) test results are provided, and (2) the proposal’s narrative on which the agency based its evaluation relies on that test data, we do not find reasonable the agency’s determination to ignore such evidence in reaching its determination of acceptability. Moreover, the agency has not explained, in this regard, how a mere statement that the product “was tested”--the only thing left in the narrative addressing this KPA, after test results are ignored--satisfied the requirement for a narrative that “clearly addresses and demonstrates” the performance attributes.

Similarly, we find unreasonable the agency’s evaluation of both Point Blank’s and Short Bark’sproposals for KPA 10. As with Carter, the agency’s evaluation of both of these offerors’ narratives for KPA 10 simply contained the notation “acceptable,” with no rationale given. AR, Tab 3b, Point Blank Initial Tech. Eval., at 3; AR, Tab 3d, Short Bark Initial Tech. Eval., at 3. Neither of these offerors’ proposals provided a meaningful narrative for this KPA. Point Blank’s proposal simply stated that its product had been tested using the prescribed method, without any narrative concerning compliance with the PD requirements. AR, Tab 9a, Point Blank Initial Proposal, at 11. Short Bark stated that [deleted]. However, there is no mention of any method of testing, whether past or future. AR, Tab 11a, Short Bark Initial Tech. Proposal, at 16. Accordingly, it does not appear that either Point Blank or Short Bark provided narratives that “clearly address[ed] and demonstrate[d]” compliance with the minimum requirements for KPA 10.

An offeror has the obligation to affirmatively demonstrate that its proposal will meet the government’s needs, where required to do so. See TRS Research, B-274845, Jan. 7, 1997, 97-1 CPD ¶ 6 at 3; Discount Machinery & Equip., Inc., B-253094, Aug. 2, 1993, 93-2 CPD ¶ 68 at 4. Although all of the awardees provided a blanket statement that their products would comply with the RFP, it is well-established that such statements are not enough to demonstrate technical acceptability. See United Satellite Sys., B-237517, Feb. 22, 1990, 90-1 CPD ¶ 201 at 4.

In sum, the awardees’ proposals did not demonstrate how their products met the requirements set forth in KPA 10, as required by the evaluation criteria. Further, the agency provided no explanation of its rationale for finding that these offerors’ proposals were technically acceptable for this KPA. Accordingly, we find that the agency’s evaluations of the awardees’ narratives for KPA 10 were unreasonable and not consistent with the RFP’s evaluation criteria. We sustain the protest on this ground.

RECOMMENDATION

We recommend that the Army either: (1) reasonably re-evaluate the proposals in accordance with the RFP as written, and make new source selection decisions; or (2) re-examine the RFP’s minimum requirements and evaluation criteria, to determine whether they accurately and unambiguously reflect the agency’s needs, and, if appropriate, amend the RFP, re-open discussions, obtain and evaluate revised proposals, and make new source selection decisions.

We also recommend that the protester be reimbursed its reasonable costs of filing and pursuing this protest, including attorneys’ fees. Bid Protest Regulations, 4 C.F.R. § 21.8(d)(1). The protester’s certified claim for such costs, detailing the time expended and costs incurred, must be submitted directly to the agency within 60 days after receipt of this decision. 4 C.F.R. § 21.8(f)(1).

The protest is sustained.  (Protect the Force, Inc. B-411897.2, B-411897.4: Nov 24, 2015)  (pdf)
 


SRA protests that the decision to reject its offer was unreasonable. According to SRA, the letter of commitment submitted for the infrastructure lead meets the requirements of the solicitation because: (1) it is a signed letter of commitment, and (2) it states that the employee is available to begin work on the project start date. In SRA’s view, the agency unreasonably rejected the letter of commitment because the proposed individual might not be available if he died or became ill.

In reviewing a protest against an agency’s evaluation, we will not reevaluate quotations but we will examine the record to ensure that an agency’s evaluation was reasonable and consistent with the evaluation criteria in the solicitation, as well as procurement statutes and regulations. See RightStar Sys., B-407597, Jan. 16, 2013, 2013 CPD ¶ 35 at 5. An agency’s evaluation of technical quotations is primarily the responsibility of the contracting agency, since the agency is responsible for defining its needs and identifying the best method of accommodating them. See Affolter Contracting Co., Inc., B-410878, B-410878.2, Mar. 4, 2015, 2015 CPD ¶ 101 at 4.

The agency explains that it was necessary that proposed key personnel commit to be available on the day performance under the contract began since months of time could pass between the date for proposal submission and the date when performance would begin. Therefore, the agency wanted assurance that the signatory was not contemplating life or career changing decisions that could deprive the team of his or her services between proposal submission and the project start date. CO Statement at 3. The agency also explains that it did not reject SRA’s proposal because the proposed key person might die or get sick, but because his proposed availability was contingent upon actions under his control, such as taking a leave of absence. Id. Since the proposed infrastructure lead stated that he could be unavailable based on events within the control of his employer (such as being moved to a different internal business group) or himself, the agency reasonably concluded that he was not unequivocally committed to being available when performance began. Therefore, we find the agency’s conclusion that SRA’s proposal was unacceptable to be reasonable.

Disparate Treatment

SRA also complains that the agency subjected it to disparate treatment in its evaluation of letters of commitment with respect to two offerors--SAIC and American Systems. Comments at 14-17. SAIC submitted letters of commitment for its key employees which read as follows:

Based on a direct match of your experience with the requirements as well as your deep domain knowledge . . . we are pleased to notify you of our intent to propose you for the Key Personnel position . . . For all Key Personnel, we are required to submit a signed letter of Commitment to the Government. Signing this letter of Commitment indicates your commitment the following:

You are committed to continuing to work on this contract in the event SAIC is awarded this task order.

* * * * *

By signing below you authorize SAIC to use your resume . . . .

I [employee] accept the terms as outlined above. I understand that although I am a current SAIC employee, this does not constitute a guarantee of employment.

See, e.g., AR, Tab 34, SAIC Letter of Commitment, at 1.

SRA asserts that SAIC’s offer should have been rejected as unacceptable because SAIC’s letters of commitment do not state that its employees will be available on the date performance begins. SRA also argues that SAIC’s letters of commitment are unacceptable because the proposed key person is not guaranteed employment. Therefore, SRA argues that it is foreseeable that the key person will be unavailable to perform. Comments at 14-15.

These arguments are without merit. As an initial matter, we find that the agency reasonably concluded that if the individual is committed to continuing to work on the contract, he or she will be available when performance starts. Further, we find no merit in SRA’s argument that the letters of commitment are unacceptable because they fail to guarantee employment. The solicitation here did not require binding bilateral employment agreements, but rather, only letters that clearly showed the intent on the part of the signatory to work for the offeror. The letters submitted by SAIC met this requirement. See USATREX Int’l, Inc., B‑275592, B-275592.2, Mar. 6, 1997, 98-1 CPD ¶ 99 at 9 (letters of commitment that demonstrate employee’s intent to work for offeror are sufficient even though they did not amount to binding employment contracts where solicitation did not require binding bilateral employment agreements); Laser Power Technologies, Inc., B-233369, B‑233369.2, Mar. 13, 1989, 89-1 CPD ¶ 267 at 14.

With regard to American Systems, its proposal contained letters of commitment for its proposed key personnel that stated as follows:

If AMERICAN SYSTEMS is awarded a contract from the aforementioned solicitation, I hereby commit to be employed and available to begin work on the project start date.

See, e.g., AR, Tab 11, American Systems Letter of Commitment, at 1. SRA complains that American Systems’ proposal should have been rejected because the letters of commitment it provided for its proposed key personnel did not show that there were current employees or contingent employees. SRA asserts that the letters of commitment are further defective because they state the authors commit to being available on the contract start date, not that they are available on the contract start date. Comments at 17.

As indicated above, the solicitation required the letters of commitment to include a statement that the proposed key person is employed. In the course of the procurement, a potential offeror asked about proposing contingent hires as key personnel. In response, the agency stated that contingent hires were acceptable, and that this information should be included in the letter of commitment. AR, Tab 44, Question and Answer 66.

The agency reasonably accepted the letters of commitment submitted by American Systems as adequate. Based on the wording of the letters, specifically that the employee committed “to be employed” by American Systems, the letters of commitment indicated that the signatories were contingent employees who will become employees if the task order is issued to American Systems. Further, we find no merit in SRA’s argument that American Systems’ letters are insufficient because they state that the employee “commits” to be available on the start date, rather than stating that the employee “will” be available on the start date. In our view, stating that the author of the letter commits to being available to start work on the contract start date is a commitment that the author will be available on that date. Since the solicitation required letters of “commitment,” we find that the agency reasonably concluded that this language satisfied the solicitation’s requirements. (SRA International, Inc. B-411773, B-411773.2: Oct 20, 2015)  (pdf)


Where, as here, an agency issues an RFQ to FSS contractors under FAR subpart 8.4 and conducts a competition, we will review the record to ensure that the agency’s evaluation is reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations; our office will not reevaluate the quotations. Carahsoft Tech. Corp., B-401169, B-401169.2, June 29, 2009, 2009 CPD ¶ 134 at 5; OPTIMUS Corp., B-400777, Jan. 26, 2009, 2009 CPD ¶ 33 at 4.

Here, we find that the agency’s evaluation was unreasonable and inconsistent with the terms of the RFQ for two reasons: one, the SSA failed to evaluate whether the personnel proposed by Intellizant were capable of performing the PWS tasks; and two, the agency failed to evaluate whether Intellizant’s quotation demonstrated the ability to provide the personnel it proposed. As previously discussed, technical acceptability was one of the RFQ’s three non-price evaluation factors. RFQ amend. 002, at 0196. Vendors were to be rated acceptable or unacceptable based on their ability to meet the RFQ’s PWS requirements. Id. The solicitation’s evaluation criteria stated that a vendor was “responsible for making sufficient representations to demonstrate that it can meet the requirements in the PWS.” Id. The PWS required vendors to have the ability to provide on-site support staff with certain qualifications. Id. at 0165. The RFQ’s instructions notified vendors that quotations that merely proposed to perform in accordance with the solicitation would be deemed ineligible for award. Id. at 0193. Furthermore, the solicitation’s instructions required vendors to submit a technical appendix with attachments such as transcripts or letters of commitment. Id.

The record shows that the agency failed to evaluate whether the awardee proposed personnel who could perform the PWS tasks. The first PWS task, “[f]unctional knowledge transfer and training,” required a vendor to demonstrate its ability to provide “personnel with an in-depth knowledge of PSC’s implementation of Oracle Federal Financials,” who also “have an in-depth knowledge of federal accounting and PSC’s specific accounting needs.” Id. at 0165. Moreover, the PWS stated that it was important for a vendor’s personnel to meet these requirements because of the task’s critical nature, which included 13 “[f]unctional knowledge transfer and training requirements.” Id. at 0165‑0166.

(paragraph deleted)

On this record, we cannot conclude that the SSA’s evaluation was reasonable. In order to be acceptable, the RFQ required vendors to demonstrate their ability to perform all of the PWS tasks. RFQ amend. 002, at 0196. The SSA testified that she believed that a vendor’s ability to perform the task order was based entirely on the qualifications of the staff provided by a vendor. (Tr.) 49: 20-22; 50:1-2. In spite of her belief, the SSA indicated that she did not evaluate whether the personnel proposed by Intellizant had the qualifications required to perform the PWS tasks but instead focused her evaluation on Intellizant’s transition plan. The SSA failed to address whether the personnel proposed by Intellizant had the experience and qualifications required in the PWS tasks. AR, Tab 5d, SSD, at 0474-0483. Moreover, we find unpersuasive the SSA’s explanation that she did not evaluate Intellizant’s proposed personnel against the minimum requirements of the functional knowledge transfer and training task because she evaluated their resumes under the resource requirements section of the RFQ. In this regard, the SSA testified that she did not know, and had not performed a review to confirm, whether the experience and qualifications identified under the resource requirements section of the PWS were sufficient to demonstrate that a vendor would meet the minimum requirements of the functional knowledge transfer and training task. Tr. 88:11-22; 89:1-10. Thus, the SSA could not have reasonably determined whether Intellizant’s proposed personnel met the minimum requirements of the functional knowledge transfer and training task. Accordingly, because the record does not demonstrate that the SSA properly considered Intellizant’s ability to provide personnel qualified to perform the functional knowledge transfer and training task, we find that the SSA’s evaluation was not conducted in accordance with the RFQ’s evaluation criteria and we sustain the protest.  (Starry Associates, Inc. B-410968.2: Aug 11, 2015)  (pdf)


Unequal Treatment

Finally, Electrosoft argues that [Department of Homeland Security] DHS evaluated the vendors’ quotes under the technical approach factor unequally. We agree.

It is a fundamental principle of government procurement that competition must be conducted on an equal basis; that is, the contracting agency must treat all offerors or vendors equally; it must even-handedly evaluate offers against common requirements and evaluation criteria. See Diebold, Inc., B-404823, June 2, 2011, 2011 CPD ¶ 117 at 4; Tidewater Homes, Realty, Inc., B-274689, Dec. 26, 1996, 96‑2 CPD ¶ 241 at 3.

Electrosoft notes several areas where DHS’s evaluation of the vendors’ quotes reflects more positive comments for the awardee, despite what the protester contends were similar approaches, or similar levels of detail, in the vendors’ quotes. For example, the TET identified a strength for PKH’s quote for demonstrating the ability to develop an Enterprise PIV program oversight plan and integrate personal identity verification (PIV) task into an ICAM integrated master schedule. See AR, Tab 14, Technical Evaluation Report, at 11. The protester contends that its quote also described in detail its experience with similar PIV projects; described how it would support DHS in developing and implementing the PIV Logical Access Control System solution; and described how it would develop an Enterprise PIV program oversight plan and integrate the PIV task into the ICAM Integrated Master Schedule. See AR, Tab 8, Electrosoft Quote, at 11-19. The protester also notes that its quotation addressed the PIV logical access requirements and future target state ICAM requirement and experience using Attribute-Based Access Control architecture. See id. The protester argues that the agency treated the vendors unequally here because the agency found that the awardee’s quote provided a “very solid understanding” of the PIV requirements and provided a lengthy description of the benefits of its approach, while noting that the protester’s quote reflected “an understanding” of the requirements. See AR, Tab 14, Technical Evaluation Report, at 8, 11.

Similarly, Electrosoft contends that the agency’s evaluation of the vendors’ knowledge and understanding of DHS business management and analysis requirements ignored similar details in the vendors’ quotes, and unreasonably assigned more favorable comments--and a higher rating of superior--to the awardee’s quote. See id.

In response to arguments by the protester that its quotation was comparable the awardee’s, DHS acknowledges, in several instances, that the vendors’ quotes were similar. See Second Supp. AR (Dec. 9, 2013) at 13‑16. Nonetheless, the agency contends that even where it used more favorable language to describe the awardee’s quote, despite the similarities to the protester’s quote, Electrosoft was not prejudiced because any such errors would likely not have changed the result of the competition. See id. As discussed above, however, we conclude that there were other errors in the agency’s evaluation of the vendors. For this reason, we do not agree with DHS that its apparent unequal treatment of Electrosoft under the technical evaluation was a non-prejudicial error.

Moreover, the record produced in the course of this protest provides little explanation about why PKH’s quotation was rated superior under the technical approach factor, while Electrosoft’s quotation was rated only satisfactory. In areas where the protester has highlighted similarities in the quotations, the agency has, in essence, conceded the similarities and acknowledged that the evaluators had little basis for the distinctions made in the contemporaneous record. While it is not the job of our Office to evaluate quotations, and while there may have been a basis for drawing distinctions between these quotations, given the record developed here, we find no basis to conclude that the agency treated the vendors equally. We therefore sustain this basis of protest.  (Electrosoft Services, Inc., B-409065, B-409065.2, B-409065.3: Jan 27, 2014)  (pdf)


NRDC argues that the agency improperly evaluated the adequacy of its proposed staffing based on a comparison of the overall number of FTEs proposed to an undisclosed government estimate, which resulted in a downgrading of the proposal’s rating under the staffing plan/key personnel factor. As explained below, we agree with the protester.

While an agency may rely on its own estimates of the staffing levels necessary for satisfactory performance in evaluating proposals for the award of a fixed-price contract, it is improper for an agency to downgrade a proposal simply because the offeror’s overall proposed FTEs differ from the government’s estimate, where the government’s estimate was not disclosed to the offerors, the agency failed to conduct discussions with the offeror concerning the discrepancy, and the agency did not look beyond the bottom line numbers to determine whether there were specific areas in which the offeror’s proposed staffing was inadequate See Olympus Bldg. Servs., Inc., B-285351, B-283351.2, Aug. 17, 2000, 2000 CPD ¶ 178 at 10; see also NCI Info. Sys., Inc., B-405589, Nov. 23, 2011, 2011 CPD ¶ 269 at 7.

This is precisely what happened here--NRDC’s proposed staffing was found to present a performance risk solely because the protester’s overall number of FTEs was below an undisclosed agency estimate, without discussions providing adequate notice of the agency’s concern or analysis of whether the protester’s proposed staffing in particular areas was sufficient.

Regarding the FTE comparison, there is simply no evidence of any analysis as to specific areas in which the protester’s final staffing numbers were considered insufficient, notwithstanding the fact that NRDC’s proposal included a breakout of its FTEs by labor category and functional area, as did the agency estimate. Rather, the record reflects that the agency mechanically compared NRDC’s total FTE count with the total FTE set forth in the government estimate where the contracting officer simply explained that the agency had concerns with NRDC’s staffing because it provided “over [deleted]% fewer personnel than identified in the Government estimate of [deleted] FTE’s.” Contracting Officer’s Statement of Facts at 14. Such a comparison, without any analysis or explanation was fundamentally unreasonable.

We recognize that the agency raised the issue of inadequate staffing with the protester during discussions. During those discussions, however, the agency specifically identified as too low the number of proposed FTEs for lodging housekeeping, laundry services, and mail; that is, the agency did not advise NRDC that it considered the protester’s staffing numbers in other areas to be too low. The protester addressed the identified staffing shortfalls in its final proposal. NRDC increased its proposed FTEs for mail handling to a level in excess of the number in the agency estimate, and increased its number of housekeeping/laundry workers to a level that, while below the agency staffing estimate, was apparently sufficient given that it exceeded the number of FTEs proposed by Bestway.

In sum, we conclude that the agency acted unreasonably in finding NRDC’s overall level of staffing to be a weakness representing performance risk without providing the protester with reasonable notice of, and the opportunity to address, the discrepancy between the agency’s overall staffing estimate and its own overall number, and without providing any analysis as to specific areas in which the protester’s final staffing numbers were considered insufficient. As a result, we sustain the protest.  (Native Resource Development Company, B-409617.3: Jul 21, 2014)  (pdf)
 


MSI next argues that the contracting officer’s best value decision was flawed because “the final TEC consensus scores upon which he relied are inconsistent with the final scores assigned by the individual TEC members.” Comments at 19. MSI also asserts that, because the record contains no explanation of why the scores changed between the individual evaluation worksheets and the final consensus report, the protest must be sustained for failure to adequately document the source selection decision. Id. Our review of the record affords us no basis to question the agency’s evaluation.

It is not unusual for individual evaluator ratings to differ significantly from one another, or from the consensus ratings eventually assigned; indeed, the reconciling of such differences among evaluators’ viewpoints is the ultimate purpose of a consensus evaluation. J5 Systems, Inc., B- 406800, Aug. 31, 2012, 2012 CPD ¶ 252 at 10. Our overriding concern is not whether an agency’s final ratings are consistent with preliminary ratings, but whether they reasonably reflect the relative merits of the proposals, consistent with the solicitation. Id. Further, our Office has consistently held that numerical point scores are useful only as guides for intelligent decision-making and are not generally controlling for award because they often reflect the disparate, subjective judgments of the evaluators. National Medical Seminars Tempharmacists, B-233452, Feb. 22, 1989, 89-1 CPD ¶ 191 at 2.

We are unaware of any requirement that every individual evaluator’s scoring sheet track the final evaluation report, or that the evaluation record document the various changes in evaluators’ viewpoints. J5 Systems, Inc., supra at 13 n.15. More importantly, our review of the record does not lead us to conclude that the agency’s evaluation was objectionable. The alleged inconsistencies upon which the protester asks us to sustain this protest amount to nothing more than quibbling with the minutia of the agency’s scoring of proposals. The probative question here, however, is not whether the agency’s point scores were off by one or two points, but whether the agency properly justified paying a price premium for IRG’s technically superior solution. We next turn to MSI’s contention in this regard.  (Management Systems International, Inc., B-409415, B-409415.2: Apr 2, 2014)  (pdf)
 


In summary, the record here establishes that: (1) SAIC’s proposal, and the agency’s evaluation thereof, was based on the technical approach, resources, and costs associated with “old” SAIC; (2) “old” SAIC did not intend to perform as the prime contractor, but rather intended that another entity, with substantially fewer resources, that was completely separate from “old” SAIC, would be the prime contractor; (3) notwithstanding all of the evidence indicating that “old” SAIC would not be the entity performing this contract, the SSA relied on “old” SAIC’s “strikingly lower probable cost,” which it attributed to its proposed technical approach; (4) the substitution of “new” SAIC as the prime contractor may well have a material effect on both the costs incurred and the technical approach employed during contract performance; and (5) the agency gave no meaningful consideration to either the technical approach or probable costs associated with “new” SAIC’s performance of the contract because, in the agency’s words, “there was no definitive information to consider.” On this record, the awardee’s proposal, and the agency’s evaluation thereof, failed to reasonably reflect the manner in which the contract will be performed, the level of costs likely associated with performance, and the corporate entity that will perform the contract. Accordingly, there is inadequate support for the agency’s assessment of projected cost savings and, similarly, no reasonable basis for award.

The protest is sustained.  (Wyle Laboratories, Inc., B-408112.2, Dec 27, 2013)  (pdf)


Technical Evaluation Errors

While BAE’s protests present a variety of allegations concerning the Navy’s technical and engineering judgments with regard to multiple aspects of its own, and Raytheon’s technical evaluations, our Office’s review of the record in this case reveals straightforward errors in the Navy’s application of the RFP’s stated evaluation scheme, and in its documentation of the evaluation record. First, our review of the record demonstrates that the Navy failed to conduct an assessment of proposal risks concerning the “Aeromechanical/Air Vehicle” sub-element of the design approach technical subfactor, which was required pursuant to the terms of the RFP. Second, our review has identified multiple technical areas in which a weakness or risk concerning Raytheon’s proposal was identified, was not resolved through discussions, but nonetheless disappeared from the evaluation without explanation.

The evaluation of an offeror’s proposal is a matter within the agency’s discretion. VT Griffin Servs., Inc., B-299869.2, Nov. 10, 2008, 2008 CPD ¶ 219 at 4; IPlus, Inc., B-298020, B-298020.2, June 5, 2006, 2006 CPD ¶ 90 at 7, 13. In reviewing a protest of an agency’s evaluation of proposals, our Office will examine the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. Shumaker Trucking & Excavating Contractors, Inc., B-290732, Sept. 25, 2002, 2002 CPD ¶ 169 at 3. While we will not substitute our judgment for that of the agency, we will sustain a protest where the agency’s conclusions are inconsistent with the solicitation’s evaluation criteria, undocumented, or not reasonably based. DRS ICAS, LLC, B-401852.4, B-401852.5, Sept. 8, 2010, 2010 CPD ¶ 261 at 4-5.  (BAE Systems Information and Electronic Systems Integration Inc, B-408565, B-408565.2,B-408565.3, Nov 13, 2013)  (pdf)
 


Small Business Subcontracting Plan Weakness

As noted above, the evaluators identified as a weakness in SRA’s proposal the protester’s omission of a copy of exhibit 5 from its small business subcontracting plan, and the failure of the plan to specify the extent of the protester’s commitment to use subcontractors through enforceable (vs. nonenforceable) agreements. SRA disputes both of these findings.

The evaluation of technical proposals is a matter within the discretion of the contracting agency, since the agency is responsible for defining its needs and the best method for accommodating them. Visual Connections, LLC, B-407625, Dec. 31, 2012, 2013 CPD ¶ 18 at 3. In reviewing an agency’s evaluation, we will not reevaluate technical proposals, but instead will examine the agency’s evaluation to ensure that it was reasonable and consistent with the solicitation’s stated evaluation criteria and with procurement statutes and regulations. Id. at 4.

In connection with the first finding, the protester argues that it was unreasonable for the evaluators to fault it for failing to furnish a copy of exhibit 5 with its proposal given that it provided all of the required information in a proposal chart. The agency argues that SRA omitted required information from its proposal by failing “to provide 25% . . . of the information required by Exhibit 5 . . . where they were to provide the dollar amount of total planned subcontracts.” Agency Memorandum of Law, Aug. 30, 2013, at 11. We are not persuaded by the agency’s argument, as it unreasonably reflects an elevation of form over substance.

The RFP instructed offerors to provide a breakdown of their proposed small business subcontracting goals by small business category. In this regard, the RFP included the following chart as an example for a contract with a maximum ordering value of $100 million and estimated subcontracts of $50 million:
 

  Column A Column B Column C
Category Percent of ID/IQ Maximum Ordering Value Dollar Value Percent of Subcontracting Value
Small Business Concerns 25 percent $25,000,000 50 percent

The following subcategories are inclusive of the above Small Business percentage

Small Disadvantaged Business Concerns 5.5 percent $5,500,000 11 percent
Women Owned Small Business Concerns 9 percent $9,000,000 18 percent
Historically Black Colleges and Universities 1.5 percent $1,500,000 3 percent
HUBZone Small Business Concerns 1.5 percent $1,500,000 3 percent
Veteran Owned Small Business Concerns 2.5 percent $2,500,000 2.5 percent
Service-Disabled Veteran-Owned Small Business Concerns 1.5 percent $1,500,000 3 percent

RFP, amend. 000001, at 41. Based on the instructions accompanying the chart, offerors were to propose small business subcontracting goals as a percentage of the ID/IQ maximum ordering value in column A; the proposed dollars subcontracted for the category in column B; and calculate the percentage goals expressed as a percent of total subcontract dollars in column C.

The solicitation instructed offerors to complete a separate chart entitled Small Business Subcontracting Plan Goals at exhibit 5. The exhibit 5 chart requested the same information pertaining to small business subcontracting goals as the sample chart on page 41 of the RFP, as set forth above. The only difference was that exhibit 5 repeated the dollar value column (Column B above) under the proposed goals as a percentage of the value of the contract and under the proposed goals as a percentage of subcontracts. The exhibit 5 chart had the following headings:

BUSINESS CATEGORY Proposed Goals Based on ID/IQ Maximum Ordering Value of $26M Proposed Goals Based on Total Planned Subcontracts of $TBP
  Dollar Amount* Percentage Dollar Amount* Percentage

The repetition of the dollar amount in the exhibit 5 chart did not require offerors to provide any additional information as compared to the chart on page 41. Rather, exhibit 5 simply required offerors to include their proposed dollar amounts for the various small business subcontracting categories twice. In this regard, the asterisk in both dollar amount columns specifically established that the dollar amounts in the two columns “should be the same.” RFP, exhibit 5.

The record reflects that the protester furnished a breakdown of its proposed small business subcontracting goals in a chart using the format of the sample chart on page 41 of the solicitation, but did not submit a separate exhibit 5 chart. That is, it furnished its goals for subcontracting with the various categories of small businesses in a chart that contained a single dollar value column, rather than two dollar value columns as contemplated by exhibit 5.

As detailed above, however, the chart used by the protester (page 41 from the solicitation) and the chart on Exhibit 5 conveyed identical information, just in slightly different formats, with the result being that SRA’s proposed dollar amounts for the subcontracting categories appeared once, rather than twice. Thus, we fail to see how the protester’s failure to furnish the same dollar amounts twice may reasonably be characterized as an omission of required information, as the agency has argued. Accordingly, we conclude that this finding of weakness lacks a reasonable basis.

SRA further argues that its failure to furnish copies of agreements demonstrating its commitment to use particular subcontractors in several of the small business categories should not have been considered a weakness because the solicitation required offerors to connect work to particular subcontractors and to specify the extent of the commitment to use those subcontractors (enforceable vs. nonenforceable agreements) only to the extent the subcontractors were known. According to the protester, it complied with the requirement by furnishing copies of enforceable agreements for the subcontractors whom it identified in its proposal, and thus should not have been assigned a weakness. In response, the agency argued that the finding was reasonable because RFP section 4.2 provided for evaluation of the extent of the offeror’s commitment to use small business subcontractors.

We find unpersuasive the agency’s explanation regarding SRA’s purported failure to address the extent of subcontractor commitments. We will read a solicitation as a whole and in a manner that gives effect to all its provisions, ArmorWorks Enters. LLC, B-405450, Oct. 28, 2011, 2011 CPD ¶ 242 at 3. Here, in addition to the language cited by the agency, the RFP contained language (at section 3.6) that required offerors to “connect the work to the subcontractor and specify the extent of commitment to use the subcontractor(s)” only if the subcontractor(s) were known. Consistent with these provisions, the protester furnished copies of enforceable agreements for its known subcontractors; thus, we fail to see a reasonable basis for finding that SRA failed to provide information as contemplated by the RFP.  (SRA International, Inc., B-408624, B-408624.2, Nov 25, 2013)  (pdf)


Corporate Experience Evaluation of Savvee

Savvee next objects to the agency’s evaluation of its quotation under the corporate experience factor, arguing that many of the weaknesses assessed in its quotation under this factor were unreasonable.

The RFQ provided that the agency would assess under the corporate experience factor whether the vendor had at least 3 years of corporate experience providing the types of services required in the SOW to either a government or commercial entity. RFQ amend. 2, at 2. Vendors were required to address: (1) the organization’s number of years of corporate experience in providing the services offered; (2) the organization’s size, experience in the field, and resources available to enable it to fulfill requirements of the size anticipated under any resultant task order; and (3) the information demonstrating the vendor’s organizational and accounting controls, and manpower presently in-house or the ability to acquire the types and kinds of personnel proposed. Id.

Savvee’s quotation described its corporate experience and the experience of its subcontractor (XL, Inc.), which totaled 32 years with the DDTC, DOS, and other federal agencies. AR, Tab 7, Savvee Technical Quotation, at 8. Savvee’s quotation also addressed the vendor’s size, resources, and experience by detailing that Savvee/XL supported more than 15 DOS bureaus and had more than 500 employees in over 40 countries, which Savvee stated provided it with substantial experience in the field. Id. Savvee also described its organizational and accounting controls, and ability to acquire necessary personnel. Id. at 9. In addition to describing generally the recruiting efforts to be utilized if additional personnel were required, Savvee stated that it would provide the entire incumbent (XL) staff and submitted resumes for these individuals demonstrating the required skills, experience, and security clearances. Id. at 9-10; Appendix A at A-1 – A-76.

The TEP rated Savvee’s corporate experience as good, noting nine strengths and five weaknesses. AR, Tab 25, TEP Report, at 1-19. As explained below, we find, however, that most of the weaknesses identified in Savvee’s quotation under this factor were not assigned reasonably or in a manner consistent with the stated evaluation criterion.

First, the TEP found that Savvee satisfied the requirement to demonstrate at least 3 years experience providing the services set forth in the SOW. Id. at 4. Nonetheless, the TEP also identified as a weakness that Savvee had not shown any experience providing similar services to the private sector. Id. at 15. The RFQ, however, required vendors to demonstrate their experience with either a government or commercial entity. There was no requirement that vendors have experience with both government and private entities. Therefore, we find that assessing a weakness for Savvee’s lack of private sector experience--when it or its subcontractor had significant experience performing these services for the government--was not reasonable.

Next, the TEP also identified as a weakness that Savvee itself did not have experience with DDTC, stating that “[t]he Bureau and Directorate experience mentioned . . . only extends to the proposed subcontractor. The Directorate does not have any current or past experience with the proposed prime contractor.” Id. at 11. Although the RFQ required that vendors have relevant experience with any government or commercial entity, it did not require specific experience with DOS or DDTC. As there was no requirement that vendors have specific experience with DOS or DDTC, the weakness assigned to Savvee’s quotation for not having such experience was unreasonable.

Also, the agency determined that Savvee possessed the size and resources needed to fulfill all anticipated SOW requirements; indeed, the record shows that the TEP found that the “Savvee/XL team combined has a wealth of experience sufficient to meet current and future needs.” Id. at 15. Nonetheless, the TEP identified a weakness in Savvee’s quotation because of the evaluators’ “[c]oncern they may be too big to focus on needs of DDTC.” Id. at 15. The contemporaneous record and the agency’s arguments in response to the protest provide no support or explanation for such a conclusion. Contracting agencies are required to adequately document their evaluation results, and sufficiently support the findings on which award determinations are made. Here, the RFQ encouraged vendors to demonstrate the breadth and depth of their resources and experience, and to explain how these resources and experience would enable them to fulfill all possible task order requirements. The agency has failed to explain how having broad experience and resources indicates that the vendor is “too big,” and may not focus on the very job they spent time and money pursuing. Absent explanation, we find that DOS acted unreasonably in assigning this weakness.

The TEP also identified as a weakness that Savvee failed to show it had ever successfully recruited necessary personnel. Specifically, the TEP stated that, “[i]n our experience with the proposed sub-contractor, out of 23 current positions, they only recruited for one position. All other employee resumes were passed to them from previous contracts. Therefore it is difficult to rate the offeror’s past success in successful recruitment.” AR, Tab 25, TEP Report, at 12. The RFQ provided, however, under the corporate experience factor, that the agency would evaluate whether vendors demonstrated that they presently possessed the manpower in-house or had the ability to recruit the required personnel. RFQ amend. 2, at 2. Savvee’s quotation demonstrated that it already possessed all required manpower in-house through its subcontractor XL, the incumbent contractor; the agency does not dispute this representation. As a result, we find this weakness to be unreasonable. Quite simply, the solicitation required vendors to demonstrate that they either possessed the manpower in-house, or the ability to recruit the needed personnel, not both.

In sum, the record demonstrates the rating assigned to Savvee’s quotation under the corporate experience evaluation factor was based in substantial part on weaknesses that were not reasonable, or were inconsistent with the stated evaluation criterion.

Corporate Experience Evaluation of Edmonds

Savvee also challenges the evaluation of Edmonds’ quotation under the corporate experience evaluation factor. In this regard, Savvee again argues that the agency applied an unstated evaluation criterion when it identified as a strength Edmonds’ understanding of DDTC’s future directions with respect to information technology (IT) support.

The TEP rated Edmonds’ corporate experience as excellent, noting six strengths and no weaknesses. AR, Tab 25, TEP Evaluation Report, at 13-19. Also as relevant here, the TEP stated in its evaluation summary that, “[w]hile both proposals more than adequately addressed all areas to be considered . . . Edmonds briefly addressed future directions of the Directorate with respect to IT support. This is a plus as the Directorate is highly dependent upon the automation of our day to day operations.” Id. 5.

The TEP made similar findings in earlier versions of its evaluation report. Specifically, the agency evaluators found as a technical discriminator that Edmonds “is much stronger in understanding the future direction of IT and the present office environment.” AR, Tab 8, TEP Report (Sept. 26, 2012), at 4.

The record shows, however, that the contracting officer questioned the appropriateness of such a finding: “How does this relate to our evaluation criteria of [m]anagement approach, corporate experience, personnel and past performance.” AR, Tab 15, Contracting Officer Email to TEP, Jan. 15, 2013, at 3. The TEP responded that “IT was included in the SOW, Task 4.” Id. The contracting officer replied as follows: “My concern is that this does not tie clearly/specifically to a particular evaluation criteria. My view is that all comments that form the basis for the decision have to clearly link to an evaluation criteria, period.” Id. The TEP’s final report nevertheless identified Edmonds’ understanding of DDTC’s future IT direction as a quotation advantage and a discriminator between these vendors.

We find that the agency’s decision to view this issue as a technical discriminator was unreasonable. As a preliminary matter, our review indicates that Edmonds’ quotation--within the management approach section--did little more than “parrot back” the SOW requirements regarding long range IT strategy. AR, Tab 5, Edmonds Technical Quotation, at 8. Moreover, the TEP’s assessment--as the contracting officer originally indicated--failed to show how understanding the agency’s long-range IT strategy related to any of the evaluation criteria, including corporate experience.

As set forth above, the corporate experience factor was essentially retrospective in nature; it looked at previous efforts to assess performance risk going forward. In contrast, the TEP credited Edmonds for its strong technical understanding of what the agency’s future IT requirements would be going forward. While Edmonds may have had a strong understanding of DDTC’s future IT needs, this technical understanding was not reasonably related to, or encompassed by, the corporate experience evaluation factor.

In light of the unreasonable weaknesses assigned to Savvee’s quotation, and the favorable assessment assigned to Edmonds’ quotation (based on an unstated criterion), it is unclear whether the adjectival ratings (good and excellent, respectively) would have remained the same had the quotations been assessed reasonably under this evaluation factor.  (Savvee Consulting, Inc. B-408416, B-408416.2, Sep 18, 2013)  (pdf)


BOQ also protests that the agency improperly assigned NCH a strength because the “[c]ontracts presented were large and very similar to our needs. They provide good evaluations from large contracts”. NCH Technical Evaluation at 3. BOQ asserts that NCH’s proposal does not demonstrate that its past performance was on contracts that were large or otherwise similar in scope to the solicitation.

We agree with BOQ that the information in NCH’s proposal does not demonstrate that the contracts listed were large or similar in size to the solicitation. Specifically, the requirements as defined by the solicitation are for a minimum of 20,000 room nights and a maximum of 200,000, RFP § B.5.1, or between 500 and 700 apartments per night. RFP, SOW, §§ C.3.6, 3.7. For two of the contracts listed to support NCH’s past performance (one with the Federal Reserve Board and one with Lexicon Relocation), however, the proposal did not indicate how many room nights or apartment nights NCH provided. For a third contract (one with the Federal Emergency Management Agency contract), the proposal indicated that NCH provided 60 apartments for 90 days, and 200 rooms for an undisclosed amount of time, NCH Proposal at B-1, B-2, a number of rooms which does not approach the number contemplated by the solicitation. Accordingly, based on the information in its proposal, it was unreasonable to award NCH a strength on the basis that it performed large contracts.  (Basic Overnight Quarters, LLC, B-406964, B-406964.2, Oct 9, 2012)  (pdf)


Grunley argues that GSA’s evaluation of its proposal under the project management approach evaluation factor was unreasonable. For the reasons discussed below, we agree.

The evaluation of offerors’ technical proposals, including the determination of the relative merits of proposals, is primarily a matter within the contracting agency’s discretion, since the agency is responsible for defining its needs and the best method of accommodating them. Highmark Medicare Servs., Inc., et al., B-401062.5 et al., Oct. 29, 2010, 2010 CPD ¶ 285 at 12. In reviewing an agency’s evaluation, we will not reevaluate the proposals, but will examine the record of the evaluation to ensure that it was reasonable and consistent with the stated evaluation criteria and procurement statutes and regulations, and to ensure that the agency’s rationale is adequately documented. Carothers Constr., Inc., B-403382, Oct. 28, 2010, 2010 CPD ¶ 268 at 6.

The solicitation provided under the project management approach factor that the agency would evaluate an offeror’s

understanding of the contract requirements including design phase services and the Offeror’s ability to manage the construction including risk management, quality control, scheduling, protection and construction in special spaces, cost control including contingency management, change order management, and “open book accounting.”

RFP at 37-38.

The agency assigned a rating of 5.9 out of 10 points to Grunley’s proposal under the project management approach evaluation factor. In doing so, the agency evaluated Grunley’s proposal as evidencing a number of “strengths,” including its “familiarity with the site and their management and support staff as reflected in the details” provided. The agency also evaluated as strengths Grunley’s inclusion of a “[DELETED],” both of which were considered by the agency to be “critical elements of the design phase services.” AR, Tab 19, SSEB Report, at 32. The agency continued, by noting as strengths, Grunley’s “proposed use of [DELETED] during the design phase,” as well as Grunley’s “philosophy to be willing to work effectively and efficiently with their subcontractors, as well as other contractors on the site.” Id. Finally, the agency noted that “Grunley provided a transition plan for use with [DELETED] and addressed potential [DELETED].” Id.

The agency also evaluated Grunley’s proposal under the project management approach factor as evidencing weaknesses. Specifically, the SSEB report states as follows:

Weaknesses:
Grunley did not discuss within their revised technical proposal a shift transition plan, nor did they specifically explain how [DELETED] within their manpower-loaded schedule would operate. Grunley’s schedule did not include float, which explicitly does not take into account suspensions of work or demonstrate a proactive approach to unforeseen conditions, high project risk, change orders, and project mutability. The overall discussed approach, in conjunction with the schedule, demonstrates a more reactive- than proactive- approach to project management This prevented Grunley from achieving a higher score on this factor.

AR, Tab 19, SSEB Report, at 32.

The protester argues that the agency’s evaluation of Grunley’s proposal under the project management approach factor was unreasonable because, contrary to the finding of the agency, its proposal did provide a shift transition plan and include float in its schedule.[5] In support of its argument, the protester points to specific pages in its proposal addressing its shift transition plan, and points out that its schedule includes float for numerous activities. Protest at 18-19; Protester’s Comments at 9-10; Protester’s Supp. Comments at 7, Exh. A, Schedule, at 1-10; AR, Tab 13, Grunley’s Final Revised Proposal, at 71-72.

With regard to shift transition, GSA’s response to Grunley’s argument notes that the SSEB also found that the protester provided a shift transition plan, and that this aspect of its proposal constituted a strength. The agency also asserts, without further explanation, that “[a]s set forth in the SSEB Report, Grunley’s receipt of a score of 5.9 for [the project management approach factor] was not due to a lack of a transition plan, but rather due to the SSEB’s reasonable determination that Grunley’s proposal suffered from a variety of weaknesses.” AR at 15.

We cannot find this aspect of the agency’s evaluation reasonable. As discussed above, the record shows that while the SSEB noted as a strength that “Grunley provided a transition plan for use with [DELETED],” it also noted as a weakness that “Grunley did not discuss within their revised technical proposal a shift transition plan.” AR, Tab 19, SSEB Report, at 32. Despite the fact that Grunley pursued this issue in detail during this protest, the agency has not meaningfully explained, or even acknowledged, what appears to be an inconsistency in the SSEB Report. In sum, we cannot find this aspect of the agency’s evaluation of Grunley’s proposal to be reasonable, given the apparent inconsistency in the record regarding this aspect of the agency’s evaluation, and the agency’s failure during the course of this protest to meaningfully respond to the protester’s arguments.

In response to Grunley’s assertion that its proposed schedule included float, GSA points to a sentence in Grunley’s proposal, under the section pertaining to the issue of work stoppages, which the agency contends demonstrates a lack of float. This sentence provides as follows:

Work Stoppages: In evaluating the scope of work and period of performance, the Government’s and Grunley’s schedule is void of any free float, or any float at all for that matter.

AR, Tab 13, Grunley’s Final Revised Proposal, at 73-74. The agency concludes, based on this sentence, that “[t]he SSEB’s determination that the schedule lacked float is reasonable because Grunley did not provide any float for the project as a whole and stated so in its proposal.” Supp. AR (Feb. 13, 2013) at 5.

Again, despite the fact that the protester has pointed out that the 10-page schedule in its proposal included float in numerous instances, the agency has made no effort to further explain this aspect of its evaluation. Protester’s Comments, Attach. A, Schedule, at 1-10. That is, the agency, in responding to the protester’s arguments, has simply ignored the fact that the protester’s schedule included float in numerous instances, and has made no effort to explain why the sentence quoted above, in context, was found by the agency to nullify the numerous instances of float in the protester’s schedule. While we recognize that the portion of Grunley’s proposal, cited above, raises a question as to whether its proposal was inconsistent with regard to float, we cannot find the agency’s assessment of a weakness because “Grunley’s schedule . . . did not include float,” to be reasonable, given the agency’s failure to acknowledge or fully respond to the fact that the protester’s schedule clearly included numerous instances of float. AR, Tab 19, SSEB Report, at 32. On this record, we sustain the protest.  (Grunley Construction Company, Inc., B-407900, Apr 3, 2013)  (pdf)


As discussed above, Exelis’s challenge to the agency’s evaluation of PAE’s proposed staffing focuses on the difference between what PAE and Exelis proposed, as well as the difference between PAE’s proposed staffing and its staffing under the predecessor contract. Exelis does not challenge any particular area of PAE’s base year staffing. The protester also has not demonstrated that the agency’s evaluation is inherently unreasonable, or that PAE’s use of the Whitestone model (along with its incumbency knowledge) to identify appropriate staffing was an unreasonable approach to establishing an appropriate level of effort to accomplish the sample task requirements. In sum, we conclude that the agency’s evaluation of PAE’s proposed staffing for the base year of the sample task was reasonable.

The record shows, however, that PAE significantly reduced the level of effort it proposed to perform the sample task in the later years of the contract. Specifically, the record shows that, although its original proposed level of effort called for [deleted] FTEs ([deleted] [American nationals] ANs, [deleted] [third-country nationals] TCNs and [deleted] [local Iraqi nationals] LNs), it gradually reduced the number of FTEs throughout the life of the contract, and also replaced a large number of TCNs with LNs; by the final year of contract performance, it proposed only [deleted] FTEs ([deleted]  ANs, [deleted]  TCNs and [deleted] LNs). PAE Proposal, Attach. A, Staffing Plan, at 15. As a result of reducing the number of FTEs overall, as well as exchanging LNs for TCNs over the course of the sample task, the record shows that PAE effectively reduced its proposed level of effort by more than [deleted] percent,  even though the workload over the life of the sample task remained constant. PAE’s proposal offers no explanation for how it will be able to perform what amounts to constant requirements with a progressively lower level of effort.

The evaluation record also is silent on the question of PAE’s reduction in its proposed level of effort and makes no attempt to explain how PAE might be able to perform the requirement in the later years of the contract. As discussed above and in our prior decision, the RFP required the agency to give consideration to the level of effort proposed to perform the sample task. Exelis Systems Corp., B-407111 et al., Nov. 13, 2012, 2012 CPD ¶ 340 at 12-13. Here, while the agency reasonably evaluated the adequacy of PAE’s proposed level of effort to perform the base year of the sample task, there is nothing in the record to show that the agency considered how PAE would perform the same requirements in the out years of the contract with substantially less staff. Accordingly, we agree with Exelis that the agency’s evaluation in this area was unreasonable. We therefore sustain this aspect of Exelis’s protest.  (Exelis Systems Corporation, B-407111.5, B-407111.6, B-407111.7, May 20, 2013.  (pdf)


Global Dynamics protests the exclusion of its proposal from the competitive range, arguing that the weaknesses identified by the evaluators under the personnel methodology factor are without basis and/or could have been resolved without major revision of its proposal.

(sections deleted)

The protester disputes several facts of the evaluators’ first finding of weakness, arguing that its proposal did provide a detailed plan for the recruitment of the incumbent contractor’s staff and additional qualified candidates. With regard to the evaluators’ specific examples of missing detail, GD pointed out that its proposal expressly identified a target for the retention of incumbents by stating that its “goal” was “to retain [deleted] of all incumbent [health care providers] HCPs.” Protester’s Technical Proposal at 30. The protester further argued that it was improper for the evaluators to fault its proposal for failing to specify whether GD would focus first on local recruitment given that the solicitation did not require offerors to provide this sort of detail; the protester also argued that only minor clarification of its recruitment plan would have been required to address the evaluators’ concerns.

Based on our review, we find the agency’s first finding of weakness to be unsupported. In response to the protest, the agency argued that while the protester’s proposal “discuss[ed] the Protester’s methodology for contacting incumbents,” it “did not explain conceptually how [the protester’s] incumbent retention plan would unfold” and did not identify a target for incumbent retention. The agency maintained that the protester’s “stated aspiration to retain [deleted] of the incumbent workforce” was “not a retention target,” but rather was “a wish, unsupported by a detailed plan to make that wish come true.” Agency Report at 10-11.

Contrary to the agency’s assertions, the proposal did not simply outline the protester’s methodology for contacting incumbent employees; it also discussed the protester’s approach to addressing incumbent employee concerns (through the [deleted]), educating incumbent employees regarding employment with GD (through the distribution of written information about the GD team, [deleted]), and [deleted] employees of the incumbent contractor to remain in their positions (by offering certain incumbent employees [deleted]). Protester’s Technical Proposal at 29-30. Moreover, the proposal furnished a “goal” for the retention of incumbent employees, i.e., [deleted]. To the extent the agency draws a distinction between a “goal” and a “target,” it is a distinction without a material difference. Both reasonably reflect a firm’s objective to retain incumbent employees. Also, with regard to the proposal’s alleged failure to indicate whether the protester would focus first on local recruiting or recruit on a national level from the outset, the record reflects that the proposal described an approach to recruiting that involved the use of national-level databases to locate qualified personnel throughout the process. Id. at 19-20. Thus, we fail to see a reasonable basis for the criticism.

We also conclude that the third weakness identified by the evaluators under the recruitment plan subfactor was unreasonable. As quoted above, the third weakness states that the protester’s proposal incorrectly referred to pediatric and orthopedic certifications “as required,” which indicated a lack of understanding of the solicitation’s requirements. Our review of the record shows that the evaluators have misquoted, and not presented fairly, the statements in the proposal on these issues.

For example, in the proposal’s representations about pediatric and orthopedic nurses, there is no statement that certification is required by the solicitation. Protester’s Technical Proposal at 11. Instead, the evaluation worksheet appears to be quoting a section--located on the same page--describing the qualifications of medical surgery nurses. This sentence in its entirety states: [deleted]. Our comparison of the evaluation worksheet with the proposal leads us to agree with the protester that the weakness identified is not supported by the underlying record.

The protester also disputes the evaluators’ findings regarding the second weakness pertaining to nursing qualifications, arguing that to the extent its proposal made some mistaken references to required qualifications for certain nursing specialties, the errors were minor matters that could easily have been remedied through discussions, as opposed to weaknesses requiring major revision of the proposal. The agency argues in response that the errors were significant in that they reflected a misunderstanding of the solicitation’s requirements. As set forth below, even this assessed weakness does not bear close scrutiny.

The evaluators’ criticism pertaining to the orthopedic and plastic surgery nurses is essentially that the protester’s description of these nursing specialties includes functions that the nurses sought here will not be required to perform because they will be working in clinics only--i.e., clinic nurses generally do not assist with operations. Even assuming that the protester’s proposal reflects a failure to understand that the orthopedic and plastic surgery nurses here will not be required to assist with operations, it is not apparent how such a misunderstanding may reasonably be characterized as a significant matter requiring major revision of the protester’s proposal. Deleting assistance with operations from the descriptions of orthopedic and plastic surgery nurses would not require significant rewriting of the position descriptions, nor would it have an impact on the qualifications of the individuals recruited to perform those positions. Further, it is not apparent that the protester’s failure to include ACLS certification as a required credential for burn unit nurses indicated a lack of understanding of the solicitation’s requirements, as opposed to simply an easily correctable oversight on the part of the protester.

In our view, the record here does not support the agency’s evaluation of the protester’s proposal under the recruitment plan subfactor of the personnel methodology factor. Elimination of one, two, or all three weaknesses could easily have resulted in the assignment of a rating of [deleted], rather than [deleted], under the subfactor, particularly given that in addition to the discussed weaknesses, the evaluators identified a strength under the subfactor. Moreover, increasing the proposal’s rating under the subfactor from [deleted] to [deleted] might have resulted in a different competitive range determination, particularly given that [deleted]. Accordingly, we sustain the protest.  (Global Dynamics, LLC, B-407966, May 6, 2013)  (pdf)


The record shows that the AID evaluators first prepared individual evaluation worksheets, which listed the point scores assigned, and the strengths, weaknesses, significant weaknesses and deficiencies identified for the proposals under each evaluation factor. The evaluators then met to prepare a consensus TEC report. This procedure occurred during the initial evaluation, and again during the evaluation of the offerors’ revised proposals. In arriving at the consensus point scores for each offeror, the evaluators calculated a mathematic average of the point scores assigned by the individual evaluators, rather than developing a consensus score and rationale. AR, exh. 7, Initial TEC Report, at 3; AR, exh. 13, Final TEC Report, at 4, 21. The record shows that the agency’s reliance on the mathematic average of the scores assessed by the individual evaluators appears to have resulted in mechanically-calculated scores that did not reflect the consensus judgment of the evaluators. While the use of a mathematic average in scoring proposals is not per se improper, in this case it resulted in the scores being distorted in the ways discussed below.

First, not all of the strengths and weaknesses identified by the individual evaluators were carried forward to the consensus TEC evaluation report. For example, in the final evaluation, one of the individual evaluators assigned only a single weakness to the Nexant proposal under the personnel evaluation factor, and assigned the proposal a numeric score of only [deleted] out of 20 available points. AR, exh. 14, Final Evaluator A Scoresheet (Nexant), at 6.[3] The weakness assigned by evaluator A that resulted in the [deleted] point score (rather than a higher score), however, was not carried forward to the final TEC report. AR, exh. 13, Final TEC Report, at 28-29. Since the weakness identified by evaluator A appears not to have been accepted in the consensus evaluation, the evaluators’ averaging method for calculating the consensus scores resulted in Nexant’s score being artificially lower than it should have been.

Second, the record reflects instances where Nexant’s individual score was based on a weakness or significant weakness assessed by an individual evaluator, even though the consensus evaluation report shows that the evaluators expressly found that the weakness or significant weakness had been resolved during discussions. For example, evaluator B assigned the Nexant proposal a significant weakness under the management approach evaluation factor for not having adequate key personnel in the third year of the contract, and assigned the proposal a numeric score of only [deleted] out of 20 available points. AR, exh. 14, Final Evaluator B Scoresheet (Nexant), at 2. In the final TEC evaluation report, however, the evaluators specifically found that this significant weakness had been eliminated by Nexant during discussions. AR, exh. 13, Final TEC Report, at 25-25. The record therefore shows that inconsistencies such as these also had the effect of artificially lowering Nexant’s consensus scores.

Third, the record reflects similar errors regarding the individual evaluator scores for Deloitte’s proposal. For example, evaluator C originally identified a significant weakness in Deloitte’s proposal under the management approach factor for failing to present the awardee’s capacity in South Asian countries; the evaluator assigned the Deloitte proposal a score of [deleted] out of 20 available points under that evaluation factor. AR, exh. 8, Initial Evaluator C Scoresheet (Deloitte), at 2. This significant weakness was carried forward to the initial TEC report. AR, exh. 7, Initial TEC Report, at 9. After discussions, evaluator C continued to note this same significant weakness in the Deloitte proposal, but for reasons that are not explained in the record, evaluator C raised Deloitte’s score under the management factor to [deleted]. AID concedes that this scoring was in error. See Supp. AR at 10. Therefore, Deloitte’s score was artificially increased, even though the significant weakness remained.

Finally, the record shows that the TEC’s consensus evaluations contained internal inconsistencies that affected Nexant’s evaluation score, as well as the agency’s source selection decision. For example, under the management approach evaluation factor, the initial TEC report identified a weakness based on Nexant’s failure to adequately describe the roles and responsibilities of its program staff. AR, exh. 7, Initial TEC Report, at 34. After conducting discussions with Nexant, the evaluators expressly found that: “In its response to question 16, the Offeror fully addresses the TEC’s question regarding staff responsibilities and roles in implementing tasks.” AR, exh. 13, Final TEC Report, at 26. Notwithstanding this express finding, however, the final TEC report stated elsewhere, in its summary rationale for the protester’s final score for the management approach factor, that this remained an unresolved weakness. Id. at 28. This weakness, along with a second resolved weakness, is identified in the FMN as a basis for distinguishing the Nexant proposal from the Deloitte proposal. AR, exh. 15, FMN, at 29.

In sum, the record reflects a lack of rationality and consistency on the part of the agency evaluators in assigning point scores to the proposals, such that the scores relied on by the SSA cannot be said to be reliable or reflective of the comparative merits of the proposals.  (Nexant, Inc., B-407708, B-407708.2, Jan 30, 2013)  (pdf)
 


Next, Exelis argues that DOS’s evaluation failed to identify strengths based on unreasonable evaluations or unequal treatment as compared to PAE. The protester raises numerous examples, certain of which were not specifically pursued in its comments on the agency report, and others of which we conclude lack merit. Discussed below are areas where we agree that the agency has not provided a reasonable explanation of the record for unequal evaluation of PAE’s and Exelis’ proposals.

For evaluation factor 1, Exelis argues that DOS identified strengths for PAE’s proposal, but failed to recognize that the protester had proposed a similar strength. The strength assigned for the awardee’s proposal was as follows:

PAE has approximately 6,200 personnel supporting O&M services around the world, including: facilities management, electrical/power distribution, water treatment, water treatment, [heating, ventilation & airconditioning] HVAC, fire suppression, security access control, carpentry, billeting, construction, warehousing, vehicle maintenance, janitorial, pest control, landscaping services, and [information technology] IT network and telecommunications support. PAE has aligned key partners with in-place supply chain capabilities and local labor serving all DoS Iraq locations.

AR, Tab 13, TEP Consensus Report, at 15. This strength was also cited as one of the discriminators in favor of award in the tradeoff between PAE’s and Exelis’ proposal in the CO award recommendation. AR, Tab 19, CO Award Recommendation, at 14.

Exelis argues that its proposal should have merited a similar strength, as its proposal demonstrated a similar, if not greater level of experience and capabilities as compared to PAE. In this regard, the TEP Chair’s evaluation scoresheet noted the following strength for Exelis’ proposal:

Exelis is an experienced Operations and Maintenance (O&M) contractor, currently managing more than 13,000 employees in the region. Exelis uses a multi-level training approach that appears to an effective program. Exelis’ proposal supports the BEC OMSS contract with fully trained, certified, qualified, experience personnel.

AR, Tab 8, Exelis TEP Evaluator Scoresheets (TEP Chair). Notwithstanding this finding, the agency did not identify a strength for Exelis’ proposal in the TEP consensus report, the CO award recommendation, or the SSD.

The record and the agency’s response to the protest do not explain why a strength was credited to PAE for this aspect of its proposal but not for Exelis. Instead, the agency argues that the basis for PAE’s higher rating was unrelated to the unequal treatment cited by the protester, and that the protester’s arguments express no more than disagreement with the agency’s judgment. AR at 22. As discussed above, however, the disputed strength was cited in the CO award recommendation as a discriminator between the offerors’ proposals.

For evaluation factor 2, Exelis argues that DOS found a strength for PAE’s proposal because it demonstrated experience in 30 areas of the SOW. AR, Tab 13, TEP Consensus Report, at 16-17. The protester states that the agency identified a strength for Exelis’ proposal based on the same list, but included only 15 of the 30 areas of SOW. See id. at 23-24. The protester contends that its proposal demonstrated experience in the same areas as PAE, but did not receive equal credit. See Supp. Protest (Sept. 7, 2012) at 6-8, citing AR, Tab 6, Exelis Proposal, vol. I, Tab 2.3; Supp. Protest (Sept. 20, 2012), at 29-32. The protester also argues that the agency unreasonably failed to assign a strength or otherwise recognize the value of its proposed personnel, citing as an example its operations manager, who, the protester contends, demonstrated qualifications and experience that exceed the RFP requirements. See Protest (Aug. 2, 2012) at 33, citing AR, Tab 6, Exelis Proposal, vol. I, Tab 2.1, at 1X. Here again, the agency did not directly respond to the protester’s arguments.

Because the agency does not meaningfully respond to the protester’s arguments above, we find no basis to conclude that the evaluation here was reasonable. Where, as here, the agency has assessed strengths for the awardee’s proposal--particularly those that were cited as discriminators between the proposals in the award recommendation--and has not provided a meaningful explanation as to why it did not assign similar strengths to the protester’s proposal, we conclude that the evaluation was unreasonable. See TriCenturion, Inc.; SafeGuard Services, LLC, B-406032 et al., Jan. 25, 2012, 2012 CPD ¶ 52 at 17. In sum, we sustain the protests concerning unequal evaluation to the extent discussed herein.  (Exelis Systems Corporation, B-407111, B-407111.2, B-407111.3, B-407111.4, Nov 13, 2012)  (pdf)


SAIC argues that [Defense Intelligence Agency] DIA improperly failed to consider CSC’s proposal of “large numbers” of uncleared personnel as a risk or weakness because it indicates that the firm does not understand the ORION program. SAIC acknowledges that the TOR did not prohibit offerors from proposing a mix of cleared and uncleared personnel. However, SAIC asserts that where, as here, the awardee will need access to a significant level of [DELETED] systems, materials, and information, it was incumbent upon the agency to consider CSC’s extensive use of uncleared personnel to perform the work.

SAIC explains that the ORION program is deployed on a [DELETED] network and is intended for use by cleared personnel. The [DELETED] systems at issue here all reside at [DELETED] government facilities and the awardee will be required to perform work on such systems at such sites routinely. SAIC states that, while uncleared personnel could participate in early development activities, only fully cleared staff would be permitted to participate in integration, test, and deployment activities on a [DELETED] system. DIA does not contest SAIC’s characterization of the program’s [DELETED] nature. DIA’s only response, which appears to agree with SAIC, is that part of the task order can be conducted outside of a [DELETED] facility prior to introduction of the systems into the [DELETED] networks. Id. The record, as discussed below, shows that DIA believed CSC’s use of “large numbers” of uncleared personnel was an issue it needed to consider, but it also shows that DIA failed to meaningfully consider the matter.

In its price proposal, CSC indicated that it intended to use “large numbers” of uncleared personnel in performance of the contract. Specifically, its price proposal read as follows:

By using a large numbers of [uncleared] individuals in our proposed solution, CSC is able to propose skilled individuals without having to include the salary premiums normally associated with cleared personnel in our proposed price. [DELETED]

CSC truly believes that using highly qualified [uncleared] personnel has enabled us to propose the lowest executable price without introducing additional risk to the ORION Analytics effort.

AR, Exh. 7.2, CSC Initial Price Proposal at 1-2.

CSC’s price proposal does not specify how many or which of its proposed personnel were to be uncleared, and is otherwise silent on the matter.

In its report on the price evaluation, the price panel included the following statement indicating that the SSEB found acceptable CSC’s use of uncleared personnel:

CSC’s proposed solution is to utilize a large number of [uncleared] individuals, while ensuring that critical personnel have [DELETED] clearances. The use of [uncleared] personnel was briefed as acceptable by the requiring activity and the SSEB was fully aware that CSC’s proposal utilized [uncleared] personnel.

AR, Exh. 11.1, Price Panel Report, at 3.

There is no contemporaneous record of the SSEB’s consideration of this issue, however, and, even if the SSEB were “fully aware” of CSC’s approach, as the price panel report suggests, there is no evidence of the SSEB’s views on the matter.

In responding to the protest, the agency asserts that the SSEB confirmed that CSC’s mix of cleared and uncleared workers was “appropriate,” citing a statement made by the CO in response to the protest. Specifically, the CO explained that upon realizing that CSC’s price was significantly below the government cost estimate, the CO:

[r]eviewed the amount and type of labor CSC had stated would be conducted by personnel without [DELETED] clearances (which was allowed). The labor for these individuals is often significantly lower than personnel with [DELETED] clearances. The CO then provided the SSEB with those sections of the CSC proposal where uncleared personnel were used in order to assure the SSEB considered this mix a viable solution. The SSEB noted that the level of CSC’s use of uncleared personnel was acceptable.

CO’s Statement at 6.

As discussed below, we find that the CO’s Statement does not reasonably comport with the underlying record.

First, as noted by SAIC in its comments, the CO could not have reviewed the “amount and type of labor CSC had stated would be conducted by noncleared personnel,” because no such information exists in CSC’s proposal. Second, the CO could not have provided the SSEB with any sections of CSC’s proposal “where uncleared personnel were used” because, aside from the price proposal, which only generally indicates CSC’s utilization of “large numbers” of uncleared individuals, there are no such sections. Third, there is no contemporaneous evidence that the SSEB “noted that the level of CSC’s use of uncleared personnel was acceptable,” and, more important, the record does not show how the SSEB could have identified CSC’s level of use of uncleared personnel or its mix of cleared/uncleared personnel based on the general statements in CSC’s price proposal. Despite two opportunities to respond to the protester’s allegations, DIA has not provided any statement from any SSEB member concerning what the SSEB knew or concluded concerning CSC’s use of “large numbers” of uncleared personnel.

Rather, in response to SAIC’s comments, the CO provided a supplemental statement in which he concedes that CSC’s proposal did not “specifically dictate the number of personnel or specific labor categories that will be cleared versus uncleared.” Supp. CO Statement at 3. The CO explains that he identified passages in CSC’s proposal as areas where “the use of uncleared personnel or [DELETED] became apparent,” which “indicated” to him “a use of uncleared resources,” and that he provided these passages to the SSEB. Id.

CSC’s technical/management proposal, however, does not contain any passages that “indicate” CSC’s use of uncleared personnel. Indeed, the CO also concedes that, “standing alone, these sections do not convey the use or extent of use of uncleared personnel.” Id. Thus, even if the CO had given sections of CSC’s price proposal to the SSEB, and even if the SSEB had found CSC’s use of uncleared personnel acceptable in principle (an assertion for which there is no contemporaneous evidence), DIA has not shown it was even possible for the SSEB to ascertain the extent to which CSC proposed to use uncleared personnel. As a consequence, DIA’s claim that it had “adequate information by which to identify risk, assess risk, and conclude that there was no risk to successful performance” based on CSC’s proposal of “large numbers” of uncleared personnel is unsupported. Accordingly, we conclude that DIA did not reasonably consider CSC’s proposed use of “large numbers” of uncleared personnel to perform the solicitation requirements in evaluating CSC’s proposal, and sustain the protest on this basis. Id.  (Science Applications International Corporation, B-407105,B-407105.2, Nov 1, 2012)  (pdf)


Technical Evaluation

The protester also challenges the agency’s evaluation of its technical proposal, arguing that many of the weaknesses identified by the evaluators were based on an incomplete or incorrect reading of the proposal. As discussed below, we agree with the protester that a number of the disputed weaknesses lacked a reasonable basis.

In reviewing protests challenging an agency’s evaluation, our Office will not reevaluate proposals; rather, we will review the record to ensure that the agency’s evaluation was reasonable and consistent with the terms of the solicitation. Unisys Corp., B-406326 et al., Apr. 18, 2012, 2012 CPD ¶ 153 at 8.

Among the weaknesses that the protester disputes are the following:

•Indicate they will provide Tech Writer/Documentation Specialist that can [deleted] and this is not with scope of this task order. (Technical approach)

•Required description of benefits to incumbent staff which was requirement of this section, deferred until another section. No statement of approach to obtain and/or replace qualified staff. (Management plan)

•Statement [deleted] assumes they are PMing projects on this task order. That indicates an erroneous assumption and lack of understanding. They are not responsible for project plans under this TO. (Management plan)

•There is no indication [if] [deleted] will be charges so not clear if government will be responsible. (Management plan)

•Ability to quickly obtain staff appears weak as it relies on [deleted]. (Staffing plan)

•Approach to conflict resolution is included only as an Appendix, not part of technical proposal which was requirement of PWS. (Technical approach)

•Resolution Management process not included in Technical Proposal as instruction indicated but instead included as an Appendix. (Technical approach)

•Conflict management approach is detached from technical proposal. (Management plan)

Technical Panel Summary Report, at 13-15.

With regard to the first weakness, one of the categories of support staff that the contractor was to provide was Technical Writer/Documentation Specialist. In describing its technical approach, the protester stated that it would provide experienced technical writers to help develop and maintain a variety of document types [deleted]. Protester’s Technical Proposal at 3. As noted above, the evaluators identified as a weakness the protester’s inclusion of [deleted] on the list of documents with which its technical writers might assist on the grounds that developing [deleted] plans was not within the scope of the task order. In this connection, the contracting officer asserts that “there are numerous pages of tasks listed for the Tech Writer/Documentation Specialist, and none of them are for [deleted].” Contracting Officer’s Statement at 5.

The protester directly rebuts the contracting officer’s assertion by pointing to several places in the [request for task order proposals] RFTOP where [deleted] is included in the description of the duties to be performed by a Technical Writer/Documentation Specialist. For example, the RFTOP describes the duties of the above position as including [deleted]. (Emphasis added.) Accordingly, we agree with the protester that this assessment of a weakness in its proposal lacks a reasonable basis.

With regard to the second weakness, the protester points out that contrary to the evaluators’ assertion, the RFTOP did not require offerors to furnish a description of the benefits to be provided incumbent staff as part of their management plans; rather, that information was to be furnished as part of their staffing plans. See RFTOP at 56 (offerors’ description of their staffing plans should include “[a] description of any special benefits to incumbents as recruiting incentive as well as overall benefits package for all employees”). Along the same lines, the RFTOP instructed offerors to provide a description of their approach to obtaining and/or replacing qualified staffing resources as part of their staffing--as opposed to their management--plans. To the extent the agency argues that what the evaluators really meant was that Emergint had not described its methodology for attracting incumbent staffing (which, per the RFTOP at 55, was to be included in offerors’ management plans), the record does not support this position either. The record reflects that Emergint included a description of its approach to attracting incumbent staffers in its management plan. See Protester’s Technical Proposal at 6 (approach to attracting incumbent staffing includes [deleted].) Thus, we also find this weakness to be unsupported.

With regard to the third weakness, the agency concedes that the finding was in error, but argues that the protester was not prejudiced by the finding. In this regard, the agency contends that the TEB chairperson, who identified the weakness, increased the score that she assigned the protester’s proposal under the management plan factor by 5 points after the consensus meeting to correct for the erroneous finding. Contracting Officer’s Statement at 5. This argument is not supported by the underlying record. While there is some indication in the record that one of the evaluators increased the score s/he assigned Emergint’s proposal under the management factor after the consensus meeting (i.e., the scores originally assigned by the evaluators, when averaged, do not equal the consensus score), there is nothing in the contemporaneous record establishing that it was the TEB chairperson who revised her scoring, or that any change made in scoring was to correct for this error. Moreover, the weakness was carried through in the final consensus report that was reviewed by the contracting officer. Technical Evaluation Summary Report at 14. In sum, we do not agree with the agency that the protester suffered no prejudice as a result of the erroneous finding.

With regard to the fourth weakness, Emergint’s proposal directly contradicts the agency’s finding that the protester did not clearly address whether the government would be responsible for [deleted]. Specifically, Emergint’s proposal described its organizational structure, including [deleted], in section 2.1 of its technical proposal and specifically provided that [deleted]. Protester’s Technical Proposal at 5. Similarly, with regard to the fifth weakness, Emergint’s proposed approach to recruiting staff did not rely exclusively on [deleted], as the agency’s finding implies; rather, the protester’s proposal described its [deleted] in its proposal, and then stated that its [deleted]. Id. at 14. Based on this record, we agree with the protester that neither weakness was reasonable.

Finally, with regard to the last three weaknesses, the protester argues that it provided descriptions of its conflict resolution, issue resolution, and conflict management processes in its technical proposal, and that it provided more detailed diagrams of all three processes in an appendix, as permitted by the terms of the RFP. In response, the agency maintains that while the solicitation instructed offerors that they could include supporting documents, including graphics and tabular content, in appendices--where they would not be counted against the 15-page limit on technical proposals--the RFP clearly stated that “the graphs and tables should only be used for supplemental information” and offerors “should not use graphs and tables as the majority of the proposal text.” RFTOP at 51. According to the agency, Emergint’s inclusion of the diagrams, which provided the majority of its description of the above processes, in an appendix rather than in the text of its proposal permitted the protester to exceed the limitation on the length of technical proposals, which was unfair to other offerors.

We are not persuaded by the agency’s argument that considering the information in the appendices to the protester’s proposal would have been unfair. As pointed out by the protester, DB also included significant information required to be provided as part of its technical proposal, i.e., a description of its employee benefits package, in an appendix, and the evaluators did not identify this as a weakness. Thus, contrary to the agency’s position, the evaluators acted unfairly when they considered the content of the appendices to DB’s proposal in their evaluation, while failing to consider the content of the appendices to Emergint’s proposal.

Based on our conclusion that some of the evaluators’ technical findings, which provided the basis for their point scoring of the protester’s proposal, were unreasonable, and our conclusion that the evaluators improperly conducted a realism analysis of the protester’s proposed pricing, which the contracting officer relied on in making his trade-off determination, we sustain the protest.  (Emergint Technologies, Inc., B-407006, Oct 18, 2012)  (pdf)


Both protesters allege that the agency, in evaluating proposals, improperly used an undisclosed government staffing estimate to determine whether their respective proposed staffing was adequate. According to the protesters whenever any of the proposals included less than the number of full time equivalents (FTE) used to prepare the undisclosed staffing estimate, the agency automatically assigned a deficiency, which caused their proposals to be rejected as unacceptable.

While an agency properly may rely on its own estimates of the manning levels necessary for satisfactory performance, absolute reliance on estimates can have the effect of arbitrarily and unfairly penalizing an innovative or unusually efficient offeror. KCA Corp., B-255115, Feb. 9, 1994, 94-1 CPD ¶ 94 at 6-7; The Jonathan Corp.; Metro Machine Corp., B-251698.3, B-251698.4, May 17, 1993, 93-2 CPD ¶ 174 at 11. Thus, it is inappropriate to determine the acceptability of proposals by the mechanical application of undisclosed government estimates, since doing so fails to assess whether a firm’s proposed workforce is particularly skilled and efficient, or whether, because of a unique approach, a firm could satisfactorily perform the work with different staffing than estimated by the agency. KCA Corp., supra.

The record here shows that in every instance where the agency identified a deficiency or weakness in any offeror’s proposed staffing, it was because the proposed staffing was less than the level identified by the agency as necessary to perform the requirement in its undisclosed government estimate, even where the variation was seemingly de minimus in comparison to the overall requirement.

(sections deleted)

In evaluating the awardee’s proposal under the resources subfactor, the agency used the same approach as above, albeit the agencies’ criticisms in this area were couched in terms of proposal weaknesses rather than deficiencies. For example, the agency’s evaluators found a weakness in CLS’s proposal under the resources subfactor as follows: “Per proposal by offeror, Figure ES-5 Page 6, they do not show enough manpower. They show [deleted] FTE’s for Maintenance Electrician when 14 FTE’s are needed in Buildings & Structures (C.13, CLS 31).” OAR, exh. Q, SSEB Report, encl. 2, Technical Approach Factor Resources Subfactor Report for CLS’s Proposal, at 1.

Our review of the record shows that, consistent with these examples, the agency used the same undisclosed staffing estimate to assess the adequacy of all of the offerors’ proposed staffing. These staffing figures originate in two documents in the record provided our Office: (1) the agency’s independent government cost and labor estimate, OAR, exh. J; and (2) a derivative document referred to as the SSEB Manpower Guide. OAR, exh. K. A comparison of the staffing estimates included in the SSEB Manpower Guide to the staffing references included in the agency’s technical evaluation materials shows that, in every instance, the agency mechanically applied its undisclosed staffing estimates to the offerors’ proposed staffing to evaluate and determine the acceptability or unacceptability of the proposals.

The agency contends that it only used the undisclosed staffing estimate as a tool to assess the reasonableness of the staffing proposed by the offerors. See CAR, exh. V, Decl. of SSEB Chairman (June 15, 2012), at 1. However, the SSEB evaluation documents quoted above indicate that this estimate was more than just a tool to assess reasonableness of the proposed staffing; instead, it was used as a benchmark of the resources the agency had concluded were required to perform this effort. Contrary to the agency’s arguments, there is no evidence in the contemporaneous record that the agency considered whether any approach to staffing other than that reflected in its undisclosed government estimate might be adequate. Instead, the evaluation documentation reflects that the agency stated what staffing it “needed” or “required” for each labor area, and that this staffing number was that reflected in the undisclosed government estimate.

In its defense, the agency asserts that it advised the protesters during discussions of the areas where their staffing was considered inadequate and that these discussions should have been sufficient to lead the offerors into the areas where the staffing levels were considered unacceptable. However, where the agency believed that the undisclosed government estimate reflected its minimum requirements, as is shown by this record, it was required to disclose this to the offerors during discussions rather than leaving the offerors to guess what staffing would satisfy the government’s requirements. See OneSource Energy Servs., B-283445, Nov. 19, 1999, 2000 CPD ¶ 109 at 12.

Our review of the record also indicates that the agency subjected the protesters’ proposed staffing to a stricter level of scrutiny in its evaluation as compared to its evaluation of the awardee’s proposal. As noted above, the agency found deficiencies with the protesters’ proposals where even minor deviations from the undisclosed staffing estimates were found, but found weaknesses when similar issues were identified in the awardee’s proposal.

For example, the agency assigned the Orion proposal a deficiency for proposing [deleted] plumber/pipefitter FTEs where the agency found that seven would be needed. OAR, exh. P, SSEB Report, encl. 2, Technical Approach Factor Resources Subfactor Report for Orion’s Proposal, at 1. Similarly, the agency assigned the Chenega proposal a deficiency for offering [deleted] FTEs for elevator mechanics where agency found that three would be needed. CAR, exh. P, SSEB Report, encl. 2, Technical Approach Factor Resources Subfactor Report for Chenega’s Proposal, at 2. In contrast, the agency only assigned the awardee’s proposal a weakness rather than a deficiency when it found that ATL proposed only [deleted] maintenance electrician FTEs where the agency thought 14 would be required. CAR, exh.Q, SSEB Report, encl. 2, Technical Approach Factor Resources Subfactor Report for ATL’s Proposal, at 1. The evaluation record contains no explanation regarding why the agency reached apparently inconsistent conclusions regarding the adequacy of the protesters’ proposed staffing on the one hand, and the awardee’s proposed staffing on the other, even though this evaluation resulted in unacceptable ratings for the protesters’ proposals and an acceptable rating for the awardee. We sustain the protests on these bases.  (Orion Technology, Inc.; Chenega Integrated Mission Support, LLC, B-406769, B-406769.2, B-406769.5, Aug 22, 2012)  (pdf)


The solicitation sought proposals to develop and provide MAST units, which are intended to allow users to simulate threats posed by man-portable air defense systems (MANPADS), i.e., shoulder-launched surface-to-air antiaircraft missiles. The MAST units will be used to train aircrews to respond to MANPADS threats. The solicitation statement of work (SOW) explained that "[t]he abundance of MANPADS, particularly among terrorist organizations, has emerged as an increasing threat to both civilian and military aircraft operating in support of Overseas Contingency Operations." RFP, SOW, at 1. The SOW identified "Russian-made MANPADS such as the SA-7, SA‑14, SA-16, and SA-18" as popular models that pose a threat to aircraft. Id. The proposed MAST units will be required to integrate an existing technology used to simulate MANPADS threats, known as the multiple integrated laser engagement system (MILES), as well as provide additional simulation capabilities.

(sections deleted)

DRS challenges the Army's evaluation of its technical proposal, and the agency's evaluation of offerors' prices. As discussed below, we conclude that the Army's evaluation of DRS's proposal had numerous prejudicial errors under the first two non-price evaluation factors--technical approach, and path forward for system performance and schedule. We conclude that the protester's challenge to the agency's evaluation offerors' proposed prices is untimely.

The evaluation of an offeror's proposal is a matter within the agency's discretion. IPlus, Inc., B‑298020, B-298020.2, June 5, 2006, 2006 CPD para. 90 at 7, 13. A protester's mere disagreement with the agency's judgment in its determination of the relative merit of competing proposals does not establish that the evaluation was unreasonable. VT Griffin Servs., Inc., B-299869.2, Nov. 10, 2008, 2008 CPD para. 219 at 4. In reviewing a protest against an agency's evaluation of proposals, our Office will not reevaluate proposals but instead will examine the record to determine whether the agency's judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. See Shumaker Trucking & Excavating Contractors, Inc., B-290732, Sept. 25, 2002, 2002 CPD para. 169 at 3. While we will not substitute our judgment for that of the agency, we will question the agency's conclusions where they are inconsistent with the solicitation criteria, undocumented, or not reasonably based. Public Communications Servs., Inc., B-400058, B-400058.3, July 18, 2008, 2009 CPD para. 154 at 17.

This decision is based, in part, upon testimony the Army SSEB Chair and SSA provided during a hearing conducted by our Office on August 21, 2010. In reviewing an agency's evaluation of offerors' proposals, we do not limit our consideration to contemporaneously-documented evidence, but instead consider all the information provided, including the parties' arguments, explanations, and any hearing testimony. Navistar Def., LLC; BAE Sys., Tactical Vehicle Sys. LP, B‑401865 et al., Dec. 14, 2009, 2009 CPD para. 258 at 6. While we generally give little or no weight to reevaluations and judgments prepared in the heat of the adversarial process, Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15, post-protest explanations that provide a detailed rationale for contemporaneous conclusions, and simply fill in previously unrecorded details, will generally be considered in our review of the rationality of selection decisions--so long as those explanations are credible and consistent with the contemporaneous record. NWT, Inc.; PharmChem Labs., Inc., B-280988, B-280988.2, Dec. 17, 1998, 98‑2 CPD para. 158 at 16.

(section deleted)

A. Technical Approach Factor Evaluation

The protester raises several challenges to the evaluation of its proposal as marginal under the technology insertion and open architecture subfactor, and the target sensitive subfactor of the technical evaluation subfactor. As discussed below, we find that there were errors in five of the weaknesses identified by the agency in DRS's proposal under these two subfactors.

1. USB ports

DRS argues that the agency unreasonably assessed a weakness in its proposal under the technology insertion and open architecture subfactor, based on the protester's proposed use of USB ports.

In the RFP performance specification, the "Data Transfer Interface" requirement required offerors to provide an input/output interface for uploading and downloading data. RFP, Performance Specification, sect. 3.7.1.2. The relevant provision is as follows: "Note: Due to Information Assurance requirements all MAST related USB ports, if part of the MAST design, shall preclude the use of commercial standard USB physical connections through keying or some other physical means." Id.

As relevant here, keying is a hardware-based means of encryption, which is considered among the most advanced forms of security for USB devices. See Tr. at 196:19-22. DRS's proposal stated in several places that it would use "keyed External USB ports" for data transfer. See AR, Tab 7A, DRS Technical Proposal, at 6-7, 14, 23.

In the revised evaluation report, the agency identified a weakness in DRS's proposal because "[t]he offeror does not provide a methodology to satisfy the [information assurance] USB requirement or an alternate solution of transferring data." AR, Tab 18, Revised Evaluation Report, at 19. The selection decision also stated that "no methodology is provided to satisfy the [information assurance] USB requirement." AR, Tab 22, SSD, at 6.

The agency contends that the plain language of the solicitation prohibited the use of any USB ports. AR at 63-64. The SSEB Chair testified that the intent of the provision was to prohibit the use of USB connections of any kind. Tr. at 197:5-12. In this regard, the agency argues that the word "preclude" refers to all USB ports, and the phrase "through keying or some other physical means" refers to clarifying examples of what kinds of USB ports are prohibited. AR at 64.

We think that the plain language of the solicitation provision does not support the agency's interpretation that all USB ports are prohibited. The first part of the provision states that "all MAST related USB ports, if part of the MAST design. . ." RFP, Performance Specification, sect. 3.7.1.2. We think this phrase plainly indicates that MAST related USB ports are allowed. The next part of the provision states that the USB ports that are part of the MAST design "shall preclude the use of commercial standard physical USB connections through keying or some other physical means." Id. We think that the second phrase plainly states that USB ports are permitted, provided that they "preclude the use of commercial standard physical USB connections" through the method specified, i.e., "keying or some other physical means." Id.

Based on the plain language of the solicitation, we think that the protester's interpretation of the RFP as permitting keyed USB ports is reasonable, and that the agency's interpretation of the RFP as barring use of all USB ports is unreasonable. Thus, we think the agency's assessment of a weakness regarding DRS's proposed use of USB ports was not reasonable under the technical evaluation factor.

(section deleted)

(DRS ICAS, LLC, B-401852.4; B-401852.5, September 8, 2010)  (pdf)


On the record before us, we conclude that the VA unreasonably evaluated DCFD's quotation with a "fail" rating for the geographic coverage factor for lack of a plan to cover the geographic area where the awardee's quotation did not include any more specific information than DCFD's quotation, which was assigned a "pass" rating under the geographic coverage factor. See Kathryn Huddleston and Assocs., Ltd., B‑289453, Mar. 11, 2002, 2002 CPD para. 57 at 7. While it may be that the agency believed that Metro West identified more resources than DCFD that could be utilized to satisfy the geographic coverage factor, this does not provide a basis for rating DCFD's quotation as "fail" under this factor. As noted above, in order to find DCFD to have "failed" under this factor, the agency was required to conclude that based on DCFD's "qualifications and experience, extreme doubt exists that the offeror will successfully perform the required effort." RFQ at 62. On this record, the agency has provided no basis for a determination that "extreme doubt exists" that DCFD "could successfully perform the required effort," particularly given that DCFD was the incumbent for these services and indicated in its quotation that it would continue to provide them, as in the past, over the same required geographic coverage area. Furthermore, we note that DCFD's quotation responded to this factor in a manner similar to Metro West's response, which the agency found to be acceptable.  (Douglas County Fire District #2, B-403228, October 4, 2010)  (pdf)


Velos also protests the reasonableness of the contracting officer assigning a performance risk to its proposal under business experience/history for not providing a more current D&B report than did Medidata.

This factor included evaluating "the overall viability of the Offeror in performing for the term of the contract including financial viability and organizational stability." RFP sect. M.1. Item 3 of the agency's FPR request was for "financial information to show current financial status" to include "your most recently available D&B report." AR, Tab 12C, Request for FPRs (Feb. 3, 2009), at 1-2. In response to item 3, Velos provided its last D&B report dated August 2008; updated financial information from that previously submitted, including an updated income statement and balance sheet; and additional explanations addressing its financial viability. AR, Tab 14B, Velos FPR (Feb. 3, 2009) at 3-4, attachs.

The contracting officer has not expressed, nor does the record establish, that the agency had a specific basis to challenge the actual financial viability of Velos. Indeed, the contracting officer explained that the only concern was based on the date of the D&B report. Tr. at 79-83. Velos states that it furnished the most current financial reports on its company in its FPR and that the D&B report dated August 2008 provided by Velos was the most recent report in its possession. In the absence of any evidence that the contracting officer had any specific concerns about the financial viability of Velos, it was not reasonable to assign a performance risk solely on the basis of the date on Velos's D&B report, particularly since the agency did not request that Velos have its D&B report updated. Thus, this discriminator between the proposals also lacks a reasonable basis. (Velos, Inc., B-400500.8; B-400500.9, December 14, 2009)  (pdf)


Trusted Base complains that DOS misevaluated its proposal under every evaluation factor. In reviewing protests of alleged improper evaluations, it is not our role to reevaluate proposals. Rather, our Office 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. Worldwide Language Res., Inc., B-297210 et al., Nov. 28, 2005, 2005 CPD para. 211 at 3. A protester’s mere disagreement with the agency’s judgment does not establish that an evaluation was unreasonable. UNICCO Gov’t Servs., Inc., B-277658, Nov. 7, 1997, 97-2 CPD para. 134 at 7. We have reviewed all of Trusted Base’s arguments and find that none has merit. We address some of Trusted Base’s arguments below.

Trusted Base asserts that its proposal was impermissibly downgraded under the understanding of the requirements and technical approach evaluation factor. The protester complains that it was penalized for failing to adequately address the approach/knowledge of office administrative support evaluation subfactor, even though this subfactor had been deleted from the evaluation scheme. Protest at 5; Protester’s Comments at 5.

Although DOS agrees that this evaluation subfactor was deleted--and acknowledges that despite its deletion the subfactor remained on the previously-prepared evaluation materials--it explains that its concern was that the protester, unlike AGTech, did not propose any FTEs for the [deleted] position, a staffing requirement set forth in the TOR’s “Service Offering Estimate.” Thus, in the agency’s view, it was not Trusted Base’s failure to discuss its general approach to, or knowledge of, office administrative support that resulted in the assessment of a weakness in Trusted Base’s proposal. Rather, it was the omission of an important position. The agency notes in this regard that this omission raised concerns about the firm’s understanding of the comprehensive TOR staffing requirements.

Trusted Base argues that it was unreasonable for the agency to assume that the firm’s proposed [deleted] FTEs for the base year staff did not include the [deleted] function position. See Protester’s Comments at 5. In fact, Trusted Base points out that its proposal clearly indicated that it would satisfy this requirement by using its [deleted] support to ESOC. Id.

While the record shows that Trusted Base’s proposal explained that its [deleted] support, we do not think it was unreasonable for the agency to be concerned about the proposal’s failure to address the requirement for a [deleted]. In addition, this position was specifically identified as a requirement in the TOR, and in other areas the agency found that other aspects of Trusted Base’s proposed staffing indicated a lack of understanding of the TOR’s comprehensive requirements. To the extent the protester believes that the information in its proposal explaining how it would use its [deleted] (a position not usually associated with [deleted]) should have addressed the agency’s concerns, the protester is simply disagreeing with the agency’s judgment; the protester’s disagreement does not make the agency’s concerns unreasonable. See UNICCO Gov’t Servs., Inc., supra.

In any case, Trusted Base’s central arguments focus on the agency’s judgment that the protester’s proposed staffing for the base and option years was understated and created doubt as to the company’s ability to successfully perform the TOR services. The protester disagrees with this evaluation finding on the basis that the data in the “Service Offering Estimate” was simply an estimate of the staffing hours required. As such, the protester asserts it could propose staffing hours that, in its business judgment, would be sufficient to perform the required services. Protester’s Comments at 2-5.

Again, while Trusted Base is correct that the staffing hours and labor categories in the TOR were estimates, the protester’s argument misses the point. Potential offerors were instructed to use this information--which was based on historical workload data and TOR requirements--in preparing their proposals. Thus, this information provided a level-playing field for reviewing how offerors would perform--and the relative differences in their cost to perform--the time and materials effort at issue here. When the protester elected to generate its own estimates of the future workload, it assumed the risk that its fewer proposed staffing hours would result in an evaluation finding that the firm’s staffing plan was understated. Also again, the protester’s disagreement with the agency’s evaluation judgment does not render it unreasonable. Coastal Drilling, Inc., B-285085.3, July 20, 2000, 2000 CPD para. 130 at 4.   (Trusted Base, LLC, B-401670, October 27, 2009) (pdf)


First, AINS objects to the agency's finding that its product failed "to fully meet" critical requirement [deleted], which requires the vendor to propose [deleted] RFQ, Att. D (Requirements Matrix), at 24. The protester responded to this requirement by noting in its self-assessment that this feature was targeted for release in version 7.0 of its FOIAXpress software, which was due out in July 2009. During discussions, the agency noted that the requirement had to be met by the time of user acceptance testing, and that AINS's proposed date of July 2009 appeared to be well beyond the user acceptance testing date. The agency also noted that the proposed solution would be in an AINS product (version 7.0) that was not yet in existence. Accordingly, the agency asked AINS to confirm whether it could meet the requirement by the time of user acceptance testing and to explain how it would do so and the state of development of its software with regard to meeting the requirement.

AINS responded by stating that it would have critical requirement [deleted] met by the time of user acceptance testing. The protester explained that it would accomplish this by enhancing the latest version of its FOIAXpress software to include the ability to [deleted], and that after this had been accomplished, a user with the appropriate permission would be able to [deleted], which could then be [deleted]. The protester furnished a detailed timeline for completing and testing the enhancement.

While the contemporaneous record lacks detail as to the basis for the evaluators' finding that AINS's response failed to demonstrate full compliance with requirement [deleted], the agency furnished the following explanation in its report: although AINS's revised quotation had indicated that, once enhanced, the protester's software would be able to [deleted], and that these reports could then be exported into various formats, "it [did] not address making the underlying [deleted], which is what Section [deleted] specifically requires." AR at 16. The agency also noted that the protester's response made clear that its software was in a developmental stage.

The protester argued in response that it had addressed the requirement for saving the [deleted] in a format that would allow it to be made available to the public by explaining in its discussion question response that its upgraded software would permit the [deleted]. The protester further argued that the evaluators had treated the vendors unequally by failing to identify Privasoft's response to the requirement as a weakness, even though it also failed to address making the [deleted] available to the public.[8] In its report on the protest, the agency responded to the protester's allegation of unequal treatment by conceding that Privasoft had not directly addressed the requirement pertaining to [deleted]; DOJ maintained that it reasonably had not questioned Privasoft's compliance, however, because Privasoft had "elsewhere indicated unequivocally it could meet the requirement." The agency noted in this connection that Privasoft had represented in its self-assessment that the capabilities required by [deleted] were "currently available" in its software. Supp. AR at 16.

We fail to see a meaningful distinction between the two vendors' responses to the requirement pertaining to [deleted], neither of which specifically addressed the capability to make the data available outside the context of a report.[9] Accordingly, we do not think that the agency has demonstrated a reasonable basis for finding that AINS, but not Privasoft, failed to "fully meet" the above requirement.  (AINS, Inc., B-400760.2; B-400760.3, June 12, 2009) (pdf)
 


SBSS asserts that the technical evaluation of IST’s proposal was inconsistent with the cost/price evaluation, in that the technical proposal was not reevaluated in light of the staffing adjustments made for purposes of the most probable cost adjustment. According to the protester, an offeror “could propose a technical approach which included staffing well in excess of the Government’s optimal staffing levels (and thus receive a higher technical rating) and not be penalized” in the technical evaluation even where the agency assumed a lower staffing level in evaluating cost. SBSS Comments at 2.

Where the cost and technical evaluation of a proposal reach contradictory conclusions, the agency generally is required to reconcile the evaluations. See Serco, Inc., B-298266, Aug. 9, 2006, 2006 CPD para. 120 at 7; Information Ventures, Inc., B-297276.2 et al., Mar. 1, 2006, 2006 CPD para. 45 at 6.

Here, there was an ultimate disparity between the technical proposal staffing and the staffing level used in the cost evaluation--based on its estimate of required FSA staffing, the Air Force assumed lower FSA staffing for IST in the cost evaluation than the level proposed in IST’s technical proposal, resulting in a downward adjustment in IST’s cost/price. While, on its face, this appears to present an evaluation inconsistency, in fact, there is no indication that IST’s proposal received a higher evaluation rating as a result of the higher staffing level in its technical proposal; the record indicates that IST’s proposal in fact received only an acceptable rating, without any evaluated strengths, under the technical approach/support subfactor of the mission capability factor. Since IST received no evaluation benefit from its higher proposed staffing level--there is no argument that IST’s staffing should have been found less than acceptable--there is no basis for us to object to this aspect of the evaluation of IST’s proposal.  (SelectTech Bering Straits Solutions JV; Croop-LaFrance, Inc., B-400964; B-400964.2; B-400964.3,  April 6, 2009) (pdf)


As an initial matter, we are aware of no statute or regulation that requires an agency to create a consensus report in evaluating proposals, nor is there any requirement that every individual evaluator’s scoring sheet track the final evaluation report. See Andrulis Corp., B-281002.2, June 2, 1999, 99-1 CPD para. 105 at 5 (a consensus score need not be the same score as initially scored by the individual evaluators). In short, these matters alone will not lead our office to conclude that there was an impropriety in the agency’s evaluation or a violation of procurement law or regulation.  (Smart Innovative Solutions, B-400323.3, November 19, 2008) (pdf)


As an initial matter, we find the protester’s criticisms of the SEB’s assignment of adjectival ratings and point scores and its corresponding documentation of this process misplaced. In Wackenhut’s view, the number of strengths and weaknesses found for each offeror “has to be the most important basis for an adjectival rating and score,” Protester’s Comments at 16, and, given that the “significant strengths” were the chief discriminator between the proposals, “if [Wackenhut’s] having twice as many significant strengths as Coastal is not a meaningful difference, then nothing in the SEB’s process can be.” Id. at 18. Wackenhut also maintains that in those instances where the SEB in fact gave some significant strengths more value than others, it failed to create a record explaining its rationale in this regard, thereby, in the protester’s view, rendering the SEB’s exercise of its discretion “unreviewable” and “illegal.” Id.

In a hearing conducted by our Office, during which we heard testimony from the SSA and the SEB Chairperson, the SEB Chairperson described the evaluation process and explained that each proposal was evaluated independently against the criteria set forth in the RFP, with the SEB reaching consensus on its findings (the various strengths and weaknesses identified for each proposal). Based upon these findings, the SEB assigned, on a consensus basis, adjectival ratings, and then point scores. In assigning ratings and scores, the SEB Chairperson explained that, with respect to significant strengths, it was the content of the offerors’ proposals, as reflected in the specific findings, which was used to rate and score offerors. The SEB Chairperson stated that the process of assigning ratings and scores was not merely a “numbers game” driven by the mere number of significant strengths identified in an offeror’s proposal. Hearing Transcript (Hr. Tr.) at 82.

We find the agency’s evaluation process unobjectionable. At the core, Wackenhut seeks a mathematical or mechanical consideration of the number of significant strengths in determining the evaluation ratings and attributing points to the offerors’ proposals. Adjectival ratings and point scores, however, are mere tools in the evaluation and selection process and should not be mechanically derived or applied. Rather, it is the agency’s qualitative findings in connection with its evaluation of proposals--in this case the documented written narratives underlying and justifying the SEB’s findings of particular significant strengths--that govern the reasonableness of an agency’s assessment of offerors’ proposals. MCR Federal, Inc., B-280969, Dec. 14, 1998, 99-1 CPD para. 8 at 9.

Here, the offerors’ proposals were evaluated independently against the RFP’s evaluation criteria and the evaluation ratings and scores simply served as an expression of the agency’s exercise of its discretion in making its qualitative findings. As a consequence, there is nothing per se improper with Coastal and Wackenhut receiving similar ratings and scores under the mission suitability factor, and related subfactors, notwithstanding the fact that Wackenhut’s proposal had more significant strengths as compared to the proposal submitted by Coastal. All Star Maintenance, Inc., B-271119, June 17, 1996, 96-1 CPD para. 278 at 4 (holding that agency’s evaluation of two offers as essentially equal was not unreasonable notwithstanding the fact that the protester had five strengths while the awardee had only two strengths). Absent some basis for concluding that the technical findings underlying the ratings and scores were flawed, there is no basis for our Office to conclude that the SEB’s ratings were unreasonable. Moreover, with respect to the documentation issue, the relevant material is NASA’s underlying technical findings, which have been amply documented by the SEB, and it is those findings which are reflected in the SEB’s qualitative findings and which formed the basis of the adjectival ratings and point scores.  (Wackenhut Services, Inc., B-400240; B-400240.2, September 10, 2008) (pdf)


PHASE-IN

ManTech challenges NASA's evaluation of offerors' approaches to phase-in at the start of the contract. In this regard, the RFP, which included a 30-day phase-in period, provided that the government would evaluate under the management plan subfactor (under the mission suitability factor) each offeror’s phase-in approach

for continuity and a smooth transition with the incumbent Contractor during the 30-day phase-in period. The Government will evaluate how clearly the phase-in plan demonstrates an ability to assume full contract responsibility on the effective date of the contract. The Government will evaluate how the phase-in plan specifically address[es] . . . the proposed . . staffing plan. . . .

RFP sect. M.3. ManTech asserts that the agency failed to recognize its advantage as the incumbent contractor.

Analex’s proposal was rated overall excellent under the management plan subfactor. This rating was based in part on two evaluated significant strengths, one for proposing (1) an “extremely well-planned, comprehensive and detailed phase-in plan that provides for a smooth transition and demonstrates a superb ability to assume full contract responsibility,” and the other one for a superior approach to using bonuses tied to the award fees earned by Analex and other bonuses as an incentive to maximize overall employee morale and performance. SSD at 4; Integrated Evaluation Panel Revised Final Report at 41-53. In addition, Analex’s proposal received four strengths under the management plan subfactor, for (1) proposing a good system (its online task order management system discussed above) to process task orders and manage multiple ongoing tasks, (2) a good approach for mitigating performance risks and for interfacing with government personnel, (3) a robust fringe benefits package, which would aid in recruiting and retaining employees, and (4) a thorough, comprehensive Mission Assurance Plan which demonstrated Analex’s knowledge of and compliance with GSFC’s Mission Assurance Guidelines. Analex’s only evaluated weakness under this subfactor was an inadequate location allowance and severance pay policy. Integrated Evaluation Panel Revised Final Report at 41-53.

ManTech’s proposal likewise was rated overall excellent under the management plan subfactor. ManTech’s rating was based in part on a single evaluated significant strength for a superior approach to phase-in, involving no major changeover of personnel, processes or procedures, which would significantly reduce the risk of phase-in. In addition, ManTech’s proposal received six strengths under the management plan subfactor, for proposing (1) policies and incentives that have a high probability of retaining employees, maintaining high morale and increasing productivity in a union environment, (2) a good task order and property management system, (3) a good approach to managing workload variability, (4) desirable benefits for part-time workers, (5) an Integrated Knowledge Environment portal that demonstrated a good approach to managing contract work, and (6) a robust total compensation plan. In addition, ManTech’s proposal received a weakness on the basis that, in contrast to Analex’s thorough, comprehensive mission assurance plan, ManTech’s significantly less detailed mission assurance plan was inadequate, failing to demonstrate compliance with GSFC’s Mission Assurance Guidelines. SSD at 7; Integrated Evaluation Panel Revised Final Report at 104-18.  Thus, the record indicates that NASA in fact recognized, and assigned ManTech’s proposal a significant strength under the management plan subfactor on account of its superior approach to phase-in. NASA specifically recognized that, given ManTech’s policies and incentives, reflected in a 95 percent employee retention rate over the past 5 years, ManTech had a high probability of maintaining its incumbent workforce, thereby significantly reducing transition risk. Integrated Evaluation Panel Revised Final Report at 104-06.  However, NASA also recognized that Analex had proposed an “exceptional strategy,” warranting a significant strength, in support of its proposal to hire [REDACTED] percent of the incumbent employees. In this regard, the agency noted that Analex had proposed a very attractive package for recruiting incumbent employees, including: [REDACTED]. In addition, NASA concluded that Analex’s proposed superior approach to bonuses (for which it earned a second significant strength) would likewise increase the likelihood of recruiting incumbent employees. In this regard, the agency noted that Analex had proposed bonuses [REDACTED], in a total amount of up to approximately [REDACTED] percent of salaries, with the bonuses commencing when Analex earned an award fee of at least [REDACTED] percent. (In contrast, in ManTech’s proposed approach of offering bonuses tied to the earned award fee, Mantech commenced the bonuses only when ManTech earned an award fee above [REDACTED] percent, and it only encouraged, but did not require, participation by its subcontractors.) NASA also determined that Analex’s robust fringe benefits package would aid in recruiting employees. Finally, the agency determined that Analex’s plan for [REDACTED], would greatly improve the likelihood of a successful transition. Integrated Evaluation Panel Revised Final Report at 41-45; Agency Supplemental Report, Mar. 17, 2008, at 4-11; ManTech FPR Mission Suitability Proposal at 113, 118; Analex FPR Mission Suitability Proposal at C-26.

We conclude that NASA reasonably determined that Analex offered an exceptional transition approach, with many incentives for incumbent employee retention, which warranted a significant strength under the management plan subfactor. Furthermore, ManTech has not shown that, given Analex’s overall two significant strengths and four strengths under the management plan subfactor, it was unreasonable for the agency to rate Analex’s proposal as excellent in this area. Certainly the fact that ManTech was the incumbent contractor here did not automatically entitle it to a higher rating under the management plan subfactor. See Karrar Sys. Corp., B‑310661, B-310661.2, Mar. 3, 2008, 2008 CPD para. 51 at 4-5. (ManTech International Corporation, B-311074, April 15, 2008) (pdf)


The evaluation of proposals is a matter within the discretion of the contracting agency, and in reviewing protests against allegedly improper evaluations, it is not our role to reevaluate proposals. Rather, our Office examines the record to determine whether the agency’s judgment was reasonable, in accord with the evaluation factors set forth in the RFP, and whether the agency treated offerors equally in its evaluation of their respective proposals and did not disparately evaluate proposals with respect to the same requirements. Hanford Env’t. Health Found., B-292858.2, B-292858.5, Apr. 7, 2004, 2004 CPD para. 164 at 4; Rockwell Elec. Commerce Corp., B-286201 et al., Dec. 14, 2000, 2001 CPD para. 65 at 5.

As stated above, the contemporaneous record does not evidence any consideration, or even awareness, by the Army of the stated “assumptions” in Fluor’s TEP that there would be a period between TO award and NTP during which it would receive incremental funding and could perform various tasks, such as procuring material and deploying equipment. See Fluor TEP, Scenario Approach, at 3, 33-34. The fact that the agency may have been unaware of the assumptions on which Fluor’s TEP stated it was predicated does not change the fact that Fluor’s assumptions were not consistent with the terms of the scenario that the other offerors, as well as the agency, treated as mandatory. It is a fundamental principle of federal procurement that a contracting agency must treat offerors equally, and the agency’s acceptance of Fluor’s proposal stating that it was predicated on the above-mentioned assumptions was improper and unfair to the other offerors.[9] See Farmland National Beef, B‑286607; B-286607.2, Jan. 24, 2001, 2001 CPD para. 31 at 8 (a proposal that fails to conform to one or more of a solicitation’s material terms is technically unacceptable and cannot form the basis for an award); Loral Terracom; Marconi Italiana, B-224908; B‑224908.2, Feb. 18, 1987, 87-1 CPD para. 182 at 9 (agency’s acceptance of a proposal based upon a methodology different than that set forth in the solicitation was improper where the agency did not inform all offerors that the agency’s requirements were not as rigid as indicated in the solicitation). Moreover, we cannot find the agency’s evaluation of Fluor’s TEP under the technical evaluation subfactors reasonable, given that it was based upon a misreading of Fluor’s proposal with regard to the stated “assumptions.” The record does not show that this is an instance where an agency noted that a proposal was taking exception to a solicitation requirement in some respect, but ultimately determined that the proposed approach would meet the agency’s needs. Rather, the contemporaneous record, as well as the agency’s arguments during the course of these protests, evidence that the Army simply misread or altogether overlooked the stated “assumptions” in Fluor’s proposal regarding the period of time and availability of funding for tasks to be performed between TO award and NTP.  (Contingency Management Group, LLC; IAP Worldwide Services, Inc., B-309752; B-309752.2; B-309752.3; B-309752.4; B-309752.5; B-309752.6; B-309752.7, October 5, 2007) (pdf)


GAP asserts that the agency’s proposal scoring scheme was flawed in that it essentially “negated” the technical distinctions among the proposals. In this respect, the record shows that the agency evaluated proposals by assigning numeric scores between 0 and 5 points for each of the 13 evaluation subfactors, and then multiplied the raw score by the weight assigned to each of the subfactors to arrive at weighted scores. According to the protester, because all of the acceptable proposals (that is, proposals that it describes as likely to have been included in the competitive range) would in practice be assigned raw numeric scores of either 3 or 4, the effect was to artificially narrow the range of possible total scores, such that it would appear from the numeric scores that all of the proposals were technically equal. According to the protester, this effectively left the source selection to be based on low price rather than on technical considerations which were to have received paramount consideration under the terms of the RFP.  This argument is without merit. It is well established that ratings, be they numerical, adjectival, or color, are merely guides for intelligent decision making in the procurement process. Business Consulting Assocs., LLC, B-299758.2, Aug. 1, 2007, 2007 CPD para.134 at 4. Where the evaluators and source selection official reasonably consider the underlying bases for the ratings, including advantages and disadvantages associated with the specific content of competing proposals, in a manner that is fair and equitable and consistent with the solicitation, a protester’s disagreement over the actual adjectival or numeric ratings assigned essentially is inconsequential in that it does not affect the reasonableness of the judgments made in the source selection decision. Id. The record here shows that the agency performed an evaluation of the proposals consistent with the RFP evaluation factors and prepared detailed narrative materials reflecting the evaluators’ findings. AR exhs. D12, D19. The record also shows that those findings were specifically considered in detail by the agency’s source selection official in making the agency’s award decision. Indeed, because the scoring was so close among the four proposals, the source selection official expressly queried the evaluators “to determine if there was a proposal that contained technical aspects that would clearly set it apart from any of the other ones.” AR exh. G7, Source Selection Decision, at 8. The technical panel concluded that no proposal had technical advantages or discrepancies that would set it apart from the other proposals and, as a result, the proposals were determined to be technically equal. GAP does not challenge any of the agency’s underlying substantive findings with respect to the relative merits of the competing proposals. The protester does not, for example, allege that the agency unreasonably failed to identify strengths that were present in its proposal or unreasonably identified weaknesses that were not present; nor does it challenge the agency’s underlying findings with respect to the other proposals in the competitive range, including the awardee’s. Moreover, GAP also has not alleged or demonstrated that it should have been assigned higher numeric scores, or that the awardee should have been assigned lower numeric scores, based upon the strengths or weaknesses identified by the agency in its evaluation. In these circumstances, given the absence of any substantive challenge to the agency’s detailed narrative evaluation findings, we simply have no basis to question the agency’s evaluation results. We therefore deny this aspect of GAP’s protest.  (Gap Solutions, Inc., B-310564, January 4, 2008) (pdf)


To the extent that Sherrick argues that the selection decision did not accurately tally the number of strengths and weakness for each proposal, or that the selection decision focuses on specific discriminators between the proposals instead of their evaluation ratings, these arguments are unavailing. The evaluation of proposals and the assignment of adjectival ratings should generally not be based upon a simple count of strengths and weaknesses, but upon a qualitative assessment of the proposals consistent with the evaluation scheme. See Smiths Detection, Inc., B-298838, B-298838.2, Dec. 22, 2006, 2007 CPD para. 5 at 5-6. Moreover, it is well established that ratings, be they numerical, adjectival, or color, are merely guides for intelligent decision-making in the procurement process. Citywide Managing Servs. of Port Washington, Inc., B-281287.12, B-281287.13, Nov. 15, 2000, 2001 CPD para. 6 at 11. Where an agency reasonably considers the underlying bases for the ratings, including advantages and disadvantages associated with the specific content of competing proposals, in a manner that is fair and equitable and consistent with the terms of the solicitation, the protesters’ disagreement over the actual adjectival or color ratings is essentially inconsequential in that it does not affect the reasonableness of the judgments made in the source selection decision. See id.; National Steel & Shipbuilding Co., B-281142, B-281142.2, Jan. 4, 1999, 99-2 CPD para. 95 at 15. The record here shows that the agency had a rational basis for its evaluations and source selection determination. Although our decision does not address every challenge raised by Sherrick regarding the number of strengths and weaknesses or adjectival ratings assigned to each offeror’s proposal, we have reviewed all of the issues raised and find that none has merit. (Sherrick Aerospace, B-310359.2, January 10, 2008) (pdf)


Pemco first challenges the agency’s assignment of “satisfactory” confidence ratings to both Pemco’s and Boeing’s proposals under the past performance factor. In this regard, Pemco complains that the agency “unreasonably failed to rate Pemco higher than Boeing,” and that the agency “was unreasonable in rating both Boeing and Pemco equally.” Protest at 15, 17. As our Office has frequently stated, adjectival ratings are only guides to assist agencies in evaluating proposals; information regarding particular strengths and weaknesses of proposals is the type of information that source selection officials should consider, in addition to ratings and point scores, to enable them to determine whether and to what extent meaningful differences exist between proposals. See, e.g., TPL, Inc., B-297136.10, B-297136.11, June 29, 2006, CPD para. 104 at 17. In this regard, proposals with the same adjectival ratings are not necessarily of equal quality, and an agency may properly consider specific advantages that make one proposal higher quality than another. See Pueblo Envtl. Solution, LLC, B-291487, B‑291487.2, Dec. 16, 2002, 2003 CPD para. 14 at 10; Oceaneering Int’l, Inc., B-287325, June 5, 2001, 2001 CPD para. 95 at 13. Here, the record clearly establishes that the agency did not evaluate Boeing’s and Pemco’s proposals as being equal with regard to past performance; rather, Pemco’s proposal was found superior to Boeing’s. Specifically, although both proposals received overall ratings of “satisfactory” confidence, the agency’s contemporaneous evaluation documents show that, after considering multiple strengths and weaknesses in both offerors’ past performance record, Pemco’s overall past performance rating was considered to be at “the high end of satisfactory” and Boeing’s overall rating was considered to be [deleted]. PAR at 159; Email from SSA (Riechers) to SSAC Advisors, Aug. 5, 2007. Similarly, the SSA unambiguously stated in his source selection decision: “I consider Pemco to have a better past performance record than Boeing.” SSDD at 22. Accordingly, there is no merit to Pemco’s protest that the two proposals were evaluated “equally” with regard to past performance; to the contrary, the agency considered this aspect of Pemco’s proposal to be better than Boeing’s. (Pemco Aeroplex, Inc., B-310372, December 27, 2007) (pdf)


Bio-Rad finally argues that the agency’s evaluation of IDEXX’s proposal as “satisfactory” under the small disadvantaged business participation factor was unreasonable. The proposal preparation instructions stated with regard to the small disadvantaged business participation factor that offerors “[s]hall identify in this section of the technical proposal specific large business, small business, HUBZone small business, small disadvantaged business, [WOSB], [VOSB], and HBCU/MI and Service Disabled Veteran-owned small business subcontract participation in contract performance.” RFP at 56. The RFP concluded here that “[t]he proposed participation of subcontractors will be evaluated based on the information submitted in the Subcontractor Information Sheet,” a copy of which was provided as an attachment to the solicitation. RFP at 57. The section of IDEXX’s technical proposal addressing the small disadvantaged business participation factor consists of one sentence, which states that “[t]here is no subcontract participation in the contract performance.”[15] AR, Tab 13, IDEXX’s Technical Proposal, at 18. The Subcontractor Information Sheet attached to IDEXX’s proposal contained a single notation of “‑NA‑.” Id. at 19. The agency evaluated IDEXX’s proposal under the small disadvantaged business participation factor as follows:

[IDEXX] does not propose any subcontracting under this contract and did not submit a subcontracting plan. Therefore, the firm is technically neutral in this area and will receive a “Satisfactory” rating.

AR, Tab 6, TEB Consensus Memorandum, at 11; Tab 7, BCM, at 23. The Source Selection Memorandum provides some explanation as to the reasoning behind this aspect of the agency’s evaluation, stating:

The firm did not intend to subcontract any portion of the subject contractor to large or small business entities if it received award. Therefore, in accordance with the [FAR] and the [SSP] I found the firm satisfactory in the area of small business subcontracting.

AR, Tab 8, Source Selection Memorandum, at 4.

In responding to Bio-Rad’s protest, the agency does not defend the propriety of its evaluation of IDEXX’s proposal under the small disadvantaged business participation factor as “satisfactory.” With that said, we note that contrary to the apparent belief of the SSA, there is no provision in the FAR that either requires or allows an agency, under the circumstances here, to evaluate a proposal as “neutral” and thus “satisfactory” under a factor designed to evaluate the participation of small disadvantaged businesses and the other types of small businesses, where the proposal expressly provides that there will be no participation by such businesses if the offeror is awarded the contract. Additionally, and contrary to the view of the SSA, there is nothing in the SSP or RFP providing or otherwise indicating that the evaluation of IDEXX’s proposal as “satisfactory” under the circumstances here was appropriate, particularly given that firm’s large business status.[16] Accordingly, the agency’s evaluation of IDEXX’s proposal under the small disadvantaged business participation factor as “satisfactory” was not reasonably based. (Bio-Rad Laboratories, Inc., B-297553, February 15, 2006) (pdf)


The record shows that, in calculating the number of hours necessary for SCLINS 0002AAA and SCLIN 0003AA, the IGCE standard apparently had included the staffing required for two other SCLINS (SCLINS 004AAA and 0005AAA, the program management functional area SCLINS for Hungary and Macedonia). Amended KTR Program Management Document, May 27, 2005, at 1. The record further shows that there were two variables that were considered by the agency in making these changes, the number of hours per year for FTEs and the number of FTEs overall for each functional area. We find nothing objectionable in the agency’s recalculation of the number of labor hours per FTE; because the IGCE standard had used what was subsequently considered an unreasonably high number of hours per FTE, the agency reasonably averaged the offerors’ number of hours per FTE to arrive at a revised figure for use in the LSA standard. Id. However, the agency’s explanation for arriving at the number of FTEs required to perform these functional areas is problematic. The record shows that the agency used KBR’s proposed staffing approach as the basis for arriving at the distribution of FTEs among the various SCLINS. Specifically, the cognizant agency personnel determined that, because KBR’s staffing approach was similar to the IGCE staffing approach, they would use KBR’s proposed staffing to arrive at the appropriate number of FTEs for the various program management functional area SCLINS; they concluded that this would provide a more realistic FTE and hour count for the government standard. Amended KTR Program Management Document, May 27, 2005, at 1. Both the agency and the awardee maintain that there was nothing improper in the agency’s actions because, by using KBR’s proposed staffing approach as the basis for establishing the agency’s evaluation standard, the agency actually reduced the FTEs under SCLINs 0002AAA and 0003AA more than if ITT’s proposed staffing had been used. The agency’s actions were improper. The agency’s use of an offeror’s staffing approach to arrive at the government’s standard was not a reasonable substitute for an agency-generated estimate based on historical workload data and the PWS requirements. While the agency’s estimate and the staffing approach proposed in the KBR proposal could be similar, in the absence of an analysis from the agency reconciling the two, there was no reasonable basis for the agency to use the KBR staffing approach as its benchmark for evaluation purposes. Using the KBR staffing approach without such an analysis had the effect of possibly giving KBR an improper competitive advantage since, obviously, KBR’s staffing automatically would be deemed acceptable, while ITT’s would not. We note as well that the agency performed this recalculation of the government standard after receiving FPRs. Thus, in addition to the standard being problematic in and of itself, ITT was not afforded the opportunity to align its proposed staffing with the revised LSA standard for program management. (ITT Federal Services International Corporation, B-296783; B-296783.3, October 11, 2005) (pdf)


KBR asserts with regard to the contingency plan factor that the agency overlooked a number of strengths, and assessed a number of weaknesses that were unreasonable. The agency responded in cursory fashion that KBR’s proposal was “more general” and provided “limited details,” and contended that the protester’s arguments reflect only “mere disagreement” with the agency. AR at 17; SAR at 9. Our review of the record shows more than “mere disagreement.” In its protest filing, KBR provided citations to its proposal showing where in KBR’s proposal the firm addressed each of the areas identified in the RFP for this factor, and showing where it addressed items the agency stated were weaknesses. KBR also made detailed arguments why its proposal was deserving of strengths or significant strengths, including pointing out where other offerors received similar strengths. See, e.g., KBR’s Protest at 14-23. The agency has failed to respond to these specific allegations. Moreover, the TEB report contains only one short statement that “KBR’s only support for their [contingency] response plan was to reference past projects and provided a general overview of their plans for contingency response,” and identified the following unelaborated weakness in KBR’s proposal under the contingency plan factor:

Very limited detail provided on existing resources and how these resources will be coordinated. Contractor mainly used past contracts to show responses. Very limited detail provided for subcontractor agreements, pre-positioned materials, equipment or people. AR, Tab 21, TEB Report, at 74-75.

Our review of the record does not show that KBR’s contingency plan is more limited or general than the awardees’ plans. Although URS proposed a plan that was approximately twice as long as the other offerors’, KBR, Fluor, and ACC all provided contingency plans of similar length. From our review, it is not apparent that the level of detail in any of the plans is significantly different. Notwithstanding KBR’s specific protest contentions, the agency has failed to provide any specific examples of where the plans are dissimilar, and none are apparent from the record. All offerors appear to have addressed the requirements of the RFP and all offerors cited past projects as examples to demonstrate how their plan would successfully be implemented. Although KBR perhaps cited a few more examples than the other offerors, the agency has not explained why this is a weakness and not a strength, given that the examples appear to demonstrate that the proposed contingency plan has been implemented successfully. Given that the record does not, on its face, support the agency’s ratings, and the agency has otherwise failed to explain the difference in ratings, we sustain the protest on this ground. (Kellogg Brown & Root Services, Inc., B-298694; B-298694.2; B-298694.3, November 16, 2006) (pdf)


Regarding Honeywell's proposed staffing, the SEB identified nine "strengths" in Honeywell's proposal and one "weakness" in evaluating Honeywell's proposal under the technical performance subfactor paragraph relating to the staffing plans." Among the strengths noted by the SEB were "Honeywell has provided [DELETED]." AR, Tab 14, Honeywell's Proposal's Strengths and Weaknesses, at 7. Additionally, the record reflects that, based upon its review of two exhibits in Honeywell's proposal pertaining to its proposed staffing plan (detailing Honeywell's staffing by, among other things, PWS section, skill category, number of personnel, and minimum qualification standards proposed), the SEB found that one exhibit "demonstrates that Honeywell has thought through the critical skill mix required to operate the [centers]," and that the other exhibit "further demonstrates a strong knowledge of the qualification standards required by each permanent member of the [contract work team]." Id. As mentioned previously, Honeywell's proposal received an overall rating of "excellent" under the technical performance subfactor. AR, Tab 14, SSA Initial Briefing, at 40. However, during its cost realism evaluation of Honeywell's proposal, the same SEB found that the proposal had "limited supporting rationale for being 45 FTE's below the Government estimate from day one." AR, Tab 43, Honeywell Cost Realism Rationale, at 1. The contemporaneous documentation of the agency's cost realism evaluation of Honeywell's proposal with regard to proposed staffing is two pages long, with only one page actually addressing the agency's "rationale" for the adjustments made. On this page, the agency identified each of the specific skill categories where adjustments were found to be necessary in the proposed staffing, typically concluding in each case, with little further elaboration, that Honeywell had not provided "sufficient rationale" for its proposed staffing. This evaluation resulted in a significant increase in the evaluated most probable cost of Honeywell's proposal, as well as a significant deduction from the proposal's mission suitability score, such that Honeywell's proposal score fell from the "excellent" range to the "very good" range. The contemporaneous record, however, does not discuss or attempt to reconcile the SEB's conclusions in the cost evaluation, where Honeywell's staffing plan was deemed "inadequate" by 43 FTEs, with the evaluation of the staffing plan under the technical performance subfactor, where Honeywell's plan was found to contain "strengths" and an "appropriate" number of proposed personnel. Thus, the contemporaneous record provides no basis to conclude whether the SEB's evaluation of Honeywell's proposed staffing under the technical performance subfactor or with regard to cost realism, or either, was reasonable. (Honeywell Technology Solutions, Inc.; Wyle Laboratories, Inc., B-292354; B-292388, September 2, 2003) (pdf)


It is apparent from the foregoing that the TEB here re-rated CMR's performance under the various projects using different questions and a different rating scale than those used by the evaluators who conducted the reference checks. Given the difference between the rating scales used and the questions asked, there is no way that we can be certain that the ratings on the forms completed by the TEB here accurately reflect the opinions expressed by the individuals contacted. For example, there is no evidence that any of the references contacted expressed an opinion as to whether CMR's performance conformed to its quality control plan, yet the TEB rated CMR's performance as having met the standard (but not exceeded it) with regard to all four projects. Further, there is no evidence that it was reasonable for the TEB to translate the references' original ratings (of excellent/good/satisfactory/etc.) into virtually across-the board ratings of "met the standard." In this regard, the agency has furnished us with neither the original rating sheets, nor with an explanation as to how it translated the scores. For example, it has not been explained (and it is unclear to us) whether ratings of "met the standard" reflect original ratings of satisfactory (as would seem appropriate) or original ratings of good (pursuant to the reasoning that "met the standard" was the second highest rating under the original scale, whereas "good" was the second highest under the scale used by the TEB). Without such information, we have no basis upon which to conclude that the agency's evaluation of the protester's past performance was reasonable. Further, as noted above, the record reveals that Pizzarotti's past performance was initially rated using a different, more liberal rating scale than either of those described above. According to the statement of the individual who conducted Pizzarotti's reference checks pursuant to an earlier solicitation, he explained to the references whom he contacted that they were to rate Pizzarotti's performance in accordance with the following scale: met or exceeded the standard, close to the standard, departure from the standard with increased risk, departure from the standard with significant risk, unacceptable departure from the standard. This scale differs from those used to rate CMR's past performance in that it collapses the top two (in the case of the exceeded the standard/met the standard/etc. scale) or possibly three ratings (in the case of the excellent/good/satisfactory/marginal/poor scale) into the single top category of met or exceeded the standard. It would obviously have been easier for Pizzarotti to attain top ratings under this scale than for CMR to attain top ratings using either of the others. In our view, the use of these different rating scales calls into question the even-handedness of the evaluation of CMR and Pizzarotti's past performance. (Cooperativa Muratori Riuniti, B-294980; B-294980.2, January 21, 2005) (pdf)


Since an offeror is not bound to provide goods or perform services that it has not offered to provide or perform, agencies may properly evaluate proposals only on the basis of the information and representations contained therein. See, e.g., Microcosm, Inc., B-277326 et al., Sept. 30, 1997, 97-2 CPD ¶ 133 at 6-7. Here, as shown above, the agency credited ATK’s proposal with meeting the required level of counter‑countermeasure performance--even though ATK’s proposal did not address the [deleted] necessary to achieve the specified level of performance. Rather, the agency’s determination that ATK’s proposal “include[d] a full description of design feature[s] that enable stated performance” was based on an agency advisor’s perception of the knowledge and capabilities of an ATK subcontractor. Since ATK’s proposal did not address the [deleted], it is not clear that all of the costs associated with ATK’s proposed [deleted] were included in its proposal, nor that ATK, or its subcontractor, is bound to provide the [deleted] the agency assumed to be part of ATK’s proposal. Based on this record, the agency’s evaluation of ATK’s proposal lacks a reasonable basis.  (Lockheed Martin Corporation, B-293679; B-293679.2; B-293679.3, May 27, 2004) (pdf)


In sum, because the agency essentially ignored Locus’s revised proposal and failed to consider price in the evaluation, we sustain the protest. (Locus Technology, Inc., B-293012, January 16, 2004)  (pdf)


The task of gathering data regarding the offerors' past performance was assigned to a TEP coordinator . . . . He gathered past performance evaluations from the offerors' contract references and recorded the information onto worksheets . . . . The worksheets identifies six separate aspects of past performance to be evaluated . . . and utilizes six separate adjectival ratings -- Outstanding, Excellent, Good, Fair, Poor and N/A [not applicable]. The [TEP coordinator] recorded the references' evaluations . . . [and] then transcribed this data to a summary matrix, recording a score of “5” for each “Outstanding” rating, a score of “4” for each “Excellent” rating, etc. . . . The rating provided by two of Shaw's references . . . for “Overall Performance” were incorrectly recorded on the summary matrix as [deleted] rather than [deleted]. . . . The [TEP coordinator] then utilized these incorrect scores to arrive at an average score for Shaw's overall performance. 

In addition to the evaluation errors discussed above--correction of which would decrease the margin of Shaw's total point score superiority from [deleted] to [deleted]--ManTech's supplemental protest identifies other apparent errors, including another apparent transcription error relating to Shaw's rating under the most heavily weighted evaluation factor, personnel. Specifically, ManTech points out that the final evaluation record incorporates an evaluator's rating of [deleted] for Shaw's proposed analytical chemist/manager, but the contemporaneous evaluator worksheets reflect a score of either [deleted] or [deleted]. Accordingly, ManTech maintains that Shaw's evaluated advantage with regard to proposed personnel was improperly inflated due to transcription errors in much the same way the agency acknowledges occurred with regard to Shaw's past performance rating. As discussed above, it is clear that, even considering only the past performance evaluation errors, which the agency acknowledges, the initial cost/technical tradeoff, on which the source selection decision was based, reflected consideration of a technical point score superiority for Shaw that was more than double the margin that existed following correction of the agency errors. Correction of these errors, alone, eliminates Shaw's evaluated advantage under the second most important evaluation factor--past performance--which, in part, formed the basis for the agency's conclusion that Shaw's technical superiority outweighed ManTech's [deleted] cost advantage. Further, as discussed above, the contemporaneous evaluation record regarding the most important evaluation factor--personnel--suggests that Shaw's slightly higher point score under that factor may have been, similarly, inaccurately recorded. In short, it appears that the evaluation record supporting Shaw's evaluated technical superiority, including the total point score ratings on which the initial source selection decision appears to significantly rely, was materially flawed. (ManTech Environmental Research Services Corporation, B-292602; B-292602.2, October 21, 2003) (pdf)


As discussed, the record reflects numerous instances where the agency either unreasonably reached conclusions relating to the EDS offer in light of the language included in the proposal (for example, in the areas of single sign-on access and the provision of Oracle database software), or apparently failed to thoroughly evaluate the proposals critically, and in a manner that would have revealed inconsistencies or deficiencies in what was being offered (for example, in the remote access, IMAC and small business areas). We find the agency’s conclusions troubling in light of its evaluation of the LMIS proposal. For example, one of the discriminators relied on by the agency to make award to EDS was its conclusion that the LMIS proposal did not actually provide mainframe and distributed systems operating system or database software. AR, exh. 30, at v, 36; AR, exh. 32, at 2. The agency reached this finding based on the wording of the software support core function narrative of the LMIS PWS, concluding that the proposal was “carefully worded to exclude the actual provision of software.” AR, exh. 30, at v. LMIS vigorously contests the agency’s finding in this regard, maintaining that other sections of its PWS, as well as the list of products contained in its CWBS made clear that the firm had in fact offered the software in question. We observe that, in reading the two proposals, the record shows that the agency seems to have applied a double standard. On the one hand, when reading the EDS proposal, the agency tended to be expansive, resolving doubt in favor of EDS (which, as we have found, led it to reach conclusions not warranted by the actual language of the firm’s offer). On the other hand, when reading the LMIS proposal, the agency applied a more exacting standard, requiring an affirmative representation within the four corners of each section of the PWS before it was prepared to conclude that one or another requirement was being met. We need not resolve which standard should have been applied in the agency’s evaluation but, to the extent that HUD essentially applied a more exacting standard in reviewing one proposal than it did in reviewing the other proposal, this was improper.  (Lockheed Martin Information Systems, B-292836; B-292836.2; B-292836.3; B-292836.4, December 18, 2003) (pdf)


To argue that the agency's failure to meaningfully evaluate a material part of Orenda's proposal is excusable on the basis that the plan's “process itself is negotiable” and will be considered and negotiated after award ignores the contracting by negotiation process set forth in part 15 of the FAR. That process generally provides that in negotiated acquisitions, an agency is to evaluate proposals in accordance with the evaluation factors set forth in the solicitation, document its evaluation of proposals, if appropriate negotiate with offerors through the conduct of discussions and allow offerors to revise their proposals, and select a proposal for award based upon the selection criteria set forth in the solicitation. FAR §§ 15.304-15.308. The negotiated acquisition process as described in the FAR and set forth in this RFP does not contemplate the selection of an inadequately evaluated proposal for award with the intent to negotiate the process by which the offeror will accomplish the agency's requirements at some later point in time. See Global Assocs. Ltd., B-271693, B‑271693.2, Aug. 2, 1996, 96-2 CPD ¶ 100 at 5 (protest sustained where the awardee's proposal was at best unclear as to its compliance with a material requirement of the solicitation, and the agency's post-award communications with the awardee to clarify the awardee's proposal in this regard constituted improper post-best and final offer discussions). Accordingly, we sustain Sabreliner's protest on the basis that the agency's evaluation of Orenda's proposal as acceptable under the transition subfactor to the technical evaluation factor was not reasonably based.  (Sabreliner Corporation, B-290515; B-290515.2; B-290515.3, August 21, 2002)  (txt version)


Failure of individual evaluators to comment upon proposals under each evaluation factor in evaluation worksheets does not render evaluation flawed--there is no general requirement for such all-inclusive comments--particularly where consensus evaluation sheet contained references to proposal advantages and disadvantages, as well as consensus scores.  (North State Resources, Inc., B-282140, June 7, 1999)


Specifically, the protester complains that two original TEB members assigned its proposal three points, the maximum possible score, while, without explanation from the original or reconvened TEB, two others assigned it zero points.  This argument is without merit. First, disparate scoring among evaluators by itself does not suffice to establish an improper evaluation. Unisys Corp., B-232634, Jan. 25, 1989, 89-1 CPD para. 75 at 6.  (General Security Services Corporation, B-280388; B-280388.2, September 25, 1998)

Comptroller General - Listing of Decisions

For the Government For the Protester
New Construction Services Group, Inc. B-412343.3: Feb 27, 2017 Glacier Technical Solutions, LLC B-412990.2: Oct 17, 2016
Encentric, Inc. B-412368.3: Apr 19, 2016  (pdf) ASRC Communications, Ltd. B-412093.4: Jul 1, 2016
SRA International, Inc. B-411773, B-411773.2: Oct 20, 2015  (pdf) Arctic Slope Mission Services, LLC B-410992.5, B-410992.6: Jan 8, 2016  (pdf)
Management Systems International, Inc., B-409415, B-409415.2: Apr 2, 2014  (pdf) Export 220Volt, Inc. B-412303.2: Jan 20, 2016  (pdf)
Trusted Base, LLC, B-401670, October 27, 2009 (pdf) Protect the Force, Inc. B-411897.2, B-411897.4: Nov 24, 2015  (pdf)
SelectTech Bering Straits Solutions JV; Croop-LaFrance, Inc., B-400964; B-400964.2; B-400964.3,  April 6, 2009 (pdf) Starry Associates, Inc. B-410968.2: Aug 11, 2015  (pdf)
Smart Innovative Solutions, B-400323.3, November 19, 2008 (pdf) Electrosoft Services, Inc., B-409065, B-409065.2, B-409065.3: Jan 27, 2014  (pdf)
Wackenhut Services, Inc., B-400240; B-400240.2, September 10, 2008 (pdf) Native Resource Development Company, B-409617.3: Jul 21, 2014  (pdf)
ManTech International Corporation, B-311074, April 15, 2008 (pdf) Wyle Laboratories, Inc., B-408112.2, Dec 27, 2013  (pdf)
Gap Solutions, Inc., B-310564, January 4, 2008 (pdf) BAE Systems Information and Electronic Systems Integration Inc, B-408565, B-408565.2,B-408565.3, Nov 13, 2013  (pdf)
Sherrick Aerospace, B-310359.2, January 10, 2008 (pdf) SRA International, Inc., B-408624, B-408624.2, Nov 25, 2013  (pdf)
Pemco Aeroplex, Inc., B-310372, December 27, 2007 (pdf) Savvee Consulting, Inc. B-408416, B-408416.2, Sep 18, 2013  (pdf)
Neeser Construction, Inc./Allied Builders System,, B-285903, October 25, 2000 Basic Overnight Quarters, LLC, B-406964, B-406964.2, Oct 9, 2012  (pdf)
North State Resources, Inc., B-282140, June 7, 1999 Grunley Construction Company, Inc., B-407900, Apr 3, 2013  (pdf)
General Security Services Corporation, B-280388; B-280388.2, September 25, 1998 Exelis Systems Corporation, B-407111.5, B-407111.6, B-407111.7, May 20, 2013.  (pdf)
  Global Dynamics, LLC, B-407966, May 6, 2013  (pdf)
  Nexant, Inc., B-407708, B-407708.2, Jan 30, 2013  (pdf)
  Exelis Systems Corporation, B-407111,B-407111.2,B-407111.3,B-407111.4, Nov 13, 2012  (pdf)
  Science Applications International Corporation, B-407105,B-407105.2, Nov 1, 2012  (pdf)
  Emergint Technologies, Inc., B-407006, Oct 18, 2012  (pdf)
  Orion Technology, Inc.; Chenega Integrated Mission Support, LLC, B-406769, B-406769.2, B-406769.5, Aug 22, 2012  (pdf)
  DRS ICAS, LLC, B-401852.4; B-401852.5, September 8, 2010  (pdf)
  Douglas County Fire District #2, B-403228, October 4, 2010  (pdf)
  Velos, Inc., B-400500.8; B-400500.9, December 14, 2009  (pdf)
  AINS, Inc., B-400760.2; B-400760.3, June 12, 2009 (pdf)
  Contingency Management Group, LLC; IAP Worldwide Services, Inc., B-309752; B-309752.2; B-309752.3; B-309752.4; B-309752.5; B-309752.6; B-309752.7, October 5, 2007 (pdf)
  Bio-Rad Laboratories, Inc., B-297553, February 15, 2006 (pdf)
  ITT Federal Services International Corporation, B-296783; B-296783.3, October 11, 2005 (pdf)
  Kellogg Brown & Root Services, Inc., B-298694; B-298694.2; B-298694.3, November 16, 2006 (pdf)
  Honeywell Technology Solutions, Inc.; Wyle Laboratories, Inc., B-292354; B-292388, September 2, 2003 (pdf)
  Cooperativa Muratori Riuniti, B-294980; B-294980.2, January 21, 2005 (pdf)
  Lockheed Martin Corporation, B-293679; B-293679.2; B-293679.3, May 27, 2004 (pdf)
  Locus Technology, Inc., B-293012, January 16, 2004)  (pdf)
  ManTech Environmental Research Services Corporation, B-292602; B-292602.2, October 21, 2003 (pdf)
  Lockheed Martin Information Systems, B-292836; B-292836.2; B-292836.3; B-292836.4, December 18, 2003  (pdf)
  Sabreliner Corporation, B-290515; B-290515.2; B-290515.3, August 21, 2002  (txt version)

U. S. Court of Federal Claims - Key Excerpts

1. The Air Force Reasonably Considered the Minority Opinions

Plaintiff argues that the manner in which the Air Force treated the three minority opinions issued by source selection team members was arbitrary. Pl.’s Br. at 20–24. In addition to disputing the reasoning contained in and factual bases for the SSA’s and the SSEB Chair’s discussion of these opinions, InSpace contends that the opinions were “arbitrarily disregarded.” Id. at 21. This latter contention rests on the GAO’s decision in Northrop Grumman Info. Tech., Inc. (NGIT), B-400134.10, 2009 CPD ¶ 167, 2009 WL 2620070 (Comp. Gen. Aug. 18, 2009). But the Court is not persuaded that the evaluation process at issue in this case resembles the one under review in NGIT.

In NGIT, a solicitation instructed that staffing information would be used to evaluate all subfactors of a technical factor, and the evaluation criterion for a particular subfactor specifically included the demonstrated reduction in personnel. 2009 WL 2620070 at *3–4. Despite this, the comments of an evaluator of that subfactor concerning staffing efficiencies “were discarded during the consensus process as being not relevant since they addressed evaluation of proposal elements outside of the” particular subfactor. Id. at *6. The GAO noted that “the agency concede[d] it did not look at the evaluator’s negative comments.” Id. at *7. As we will see below, all of the minority opinions were considered and addressed by procurement officials, even if they were found to concern matters beyond the scope of the requirements. Far from being “discarded,” two of them were included in the Proposal Analysis Report, AR, Tab 101 at 28741–45, 28747–48, and the third, generated after the report was written, was addressed in an addendum to the report, AR, Tab 118 at 34178.  (InSpace 21 LLC v U. S. and Range Generation Next, No. 15-364, September 7, 2016)


(i) The SSEB’s Best-Value Analysis Was Irrational and Contrary to the RFP

While the decisions of procurement officials are entitled to substantial deference from a reviewing court, such deference is not unlimited. Whenever a procurement decision is without a rational basis or is based upon a clear violation of law, that decision must be set aside. For the reasons discussed below, the court concludes that the best-value analysis performed by the [source selection evaluation board] SSEB was both irrational and inconsistent with the evaluation scheme set forth in the RFP.

There is no dispute that the RFP contemplated the award of the MCI contract on a best-value basis, “price and other factors considered.” AR at 139. The RFP stated that Factors 2 through 6 were listed in descending order of importance, and further provided that those factors, when combined, were to be evaluated as more important than price. Id. at 140. However, the RFP also explained that “as the technical merits of competing offers approach equal, price will become more important in any trade-off decision.” Id. at 141.

The FirstLine proposal was technically superior to the proposal submitted by intervenor, and the differences between those two proposals were far from insignificant. For Factors 2 through 5, the proposals were rated on a scale with four levels. The difference between the ratings assigned to the proposals was one level for Factors 2 through 4 ([ ]) and two levels for Factor 5 ([ ]), all in favor of FirstLine. Id. at 1548. Furthermore, the adjectival ratings assigned to the parties’ proposals do not fully capture the differences between those proposals. With respect to Factor 2, for example, the FirstLine proposal was assigned [ ] identified strengths. Id. at 1482-89. In contrast, the TET did not identify [ ] in intervenor’s proposal on that factor. Id. at 1493-95. In all, the FirstLine proposal had thirtythree strengths and not a single weakness, id. at 1482-92, while intervenor’s proposal had just one strength and one weakness, id. at 1493-96.

In its report, the SSEB minimized the substantial differences between the proposals, which had the effect of elevating the relative importance of price in its best-value tradeoff analysis. First, the SSEB downplayed the difference in the adjectival ratings assigned to the proposals. In addition, the SSEB largely ignored the chasm between the number of strengths assigned to the proposals, and instead focused its comparison almost exclusively on their respective ratings. These errors had the effect of converting the best-value procurement contemplated under the RFP into one based on low price and mere technical acceptability. Because the SSEB’s best-value analysis was inconsistent with the RFP, it was irrational and contrary to law. See 48 C.F.R. § 15.305(a) (“An agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation.”).

In Femme Comp, Inc. v. United States, 83 Fed. Cl. 704 (2008), this court set aside the award of three contracts, in part because the best-value tradeoff analysis performed by the [source selection authority] SSA was arbitrary, capricious, and not in accordance with law. There, the court discerned a pattern or intent in the source selection award document to “inflate the technical portions of the low-price[d] offerors’ proposals and downplay the technical superiority of the higher-priced offerors’ proposals.” Id. at 768. Further, the consequence of those errors was to elevate the importance of the price factor in contravention of the solicitation, which provided that the nonprice factors would be evaluated as significantly more important than price. In other words, the court held that the government “essentially convert[ed] the best value procurement into a technically acceptable, low-price procurement.” Id. at 758. The court concluded that the government’s attempt to minimize the technical differences between proposals was arbitrary, capricious, and not in accordance with law. As will be discussed in greater detail below, the Femme Comp case and the instant case have much in common.

Here, it is clear that the SSEB failed to account for the significant differences between the competing proposals with respect to technical quality. First, the court cannot fathom how the SSEB could have reached the conclusion that the FirstLine proposal was only “moderately better” than the Akal proposal. See AR at 1549. In that regard, the court observes one essential and irrefutable fact – with respect to the four most important technical evaluation factors in the tradeoff analysis (Management Approach, Screening Services, Security Training, and Pre-Transition / Transition), FirstLine scored at least one full level above Akal in every factor. It is also even more difficult to comprehend the SSEB’s conclusion in light of the fact that the FirstLine proposal was assigned thirty-three strengths and not a single weakness, while intervenor’s proposal received only one strength and one weakness, particularly when [ ] of FirstLine’s strengths were related to the most important non-price factor considered in the best-value tradeoff analysis. In the absence of any explanation of why the differences in the technical ratings assigned to the proposals were less significant than the ratings would indicate, or why the many strengths assigned to the FirstLine proposal were entitled to scant weight in the analysis, the SSEB’s conclusion that the FirstLine proposal was only moderately better than the Akal proposal must be termed as arbitrary and capricious.

Next, the SSEB report states that the proposal submitted by intervenor is “fully sufficient in meeting the Government’s requirements.” Id. While that assessment may be accurate, it is also irrelevant because this was not a lowest-price technically acceptable procurement. In a best-value procurement, the relevant question is not whether the lowest-priced proposal will meet the minimum technical requirements set forth in the RFP; rather, the government must determine which proposal represents the best value to the government. Compare 48 C.F.R. § 15.101-1 (stating that a tradeoff analysis requires the government to balance the price of proposals against non-price factors in accordance with the solicitation), with id. § 15.101-2(b)(1) (stating that in a lowest-price technically acceptable source selection, the government must award the contract “on the basis of the lowest evaluated price of proposals meeting or exceeding the acceptability standards for non-cost factors”). Both this court, see Femme Comp, 83 Fed. Cl. at 757-70, and GAO have sustained bid protests for precisely this reason.

In Preferred Systems Solutions, Inc., B-292322, B-292322.2, B-292322.3, 2003 CPD ¶ 166, 2003 WL 22242190, at *8 (Comp. Gen. Aug. 25, 2003), for
example, GAO sustained a bid protest where the evidence indicated that the “agency may have improperly converted the source selection to one based upon technical acceptability and low price, instead of one emphasizing technical superiority and skills as announced in the RFP evaluation scheme.” In that case, as in this case, the government selected a technically inferior proposal and justified that decision by stating that both offers were “acceptable” and noting a “significant difference in cost.” Id.

Similarly, in Johnson Controls World Services Inc., B-289942, 2002 CPD ¶ 88, 2002 WL 1162912, at *5 (Comp. Gen. May 24, 2002), GAO sustained a protest for essentially the same reasons. There, as here, the government awarded a contract to a low-priced but technically inferior offeror. In support of the decision, the government argued that the winning proposal was “more than adequate,” “exceeded the work management requirements,” and “would get the job done.” Id. at *6. GAO held that these statements were an insufficient basis for an award decision in a best-value procurement, and noted that the government had ignored important differences between the proposals. These cases demonstrate that the use of criteria such as whether a proposal is “acceptable” or “sufficient” has no place in a best-value tradeoff analysis.

Finally, the SSEB report concludes that the FirstLine proposal is not worth the payment of a price premium because the proposal submitted by intervenor “also offered an acceptable level of technical competence.” AR at 1549. In addition to suffering from the problems discussed above, this statement is particularly misleading in that it suggests that both proposals were assigned an acceptable rating for each of the technical factors, which is not the case. As noted above, FirstLine was assigned superior ratings on Factors 2 through 5. The only factor on which the FirstLine proposal was assigned a rating of [ ] was Factor 6, for which [ ]. Intervenor, in contrast, received across-the-board ratings of [ ].

In addition to minimizing the differences in the technical ratings assigned to the two proposals, the SSEB further compressed the differences between them by focusing almost exclusively on those ratings instead of comparing the strengths, weaknesses, benefits, and disadvantages of the proposals. As this court has noted, “the FAR requires more detail.” Femme Comp, 83 Fed. Cl. at 768. When the government is required to perform a best-value tradeoff analysis, it cannot limit its comparison of the proposals to the ratings assigned to them by lower-level evaluators.

In Femme Comp, this court held that the comparison of proposals on the basis of technical ratings alone is insufficient in a best-value tradeoff analysis. There, the government noted in its source selection decision that two proposals had received the same adjectival rating, but “did not document any effort . . . to determine whether, despite the identical ratings, one was stronger than the other . . . .” 83 Fed. Cl. at 767. It appeared to this court that the government’s “conclusions relied upon the Army’s assigned ratings instead of the Army’s underlying evaluations.” Id. at 768.

Here, the [source selection plan] SSP also required the SSEB to “[i]dentify and fully document proposal strengths, weaknesses, and clarifications as well as provide an overall assessment of each proposal . . . .” AR at 460. The SSEB report does not document the strengths and weaknesses received by each of the competing proposals. Instead, the report contains a selective presentation of some of those strengths and weaknesses, but does not identify them as such.

In this case, the government not only ignored the dramatic difference in the number of strengths assigned to the proposals; it also took affirmative steps to minimize or neutralize those differences in the SSEB report. With respect to Factor 4, for example, the FirstLine proposal received [ ] strengths, while the Akal proposal received [ ]. The SSEB attempted to minimize that difference, noting that the parties “[ ].” Id. at 1544. This statement obscures the fact that the FirstLine proposal was not only assigned a higher adjectival rating on Factor 4, but was also assigned [ ] strengths for that factor, while intervenor’s proposal was assigned [ ]. While the SSEB’s careful use of parentheses might counter the charge that it misrepresented the number of strengths in the respective proposals, it reinforces the appearance of an intent to mask the real differences between them. See Johnson Controls, 2002 WL 1162912, at *7 (finding that the government attempted to minimize the differences between proposals by noting that both of them had major strengths, and thus “lump[ed] all of these major strengths together as if they were equivalent when they are not apparently so, and discard[ed] any underlying qualitative value they might represent with no supporting justification”); cf. Femme Comp, 83 Fed. Cl. at 769 (noting that the government in that case “emphasized the nature, quality, and extent of a proposal’s strengths when it benefitted a lower-priced proposal but often ignored the nature, quality, and extent of a proposal’s strengths and relied instead on the adjectival/color ratings when a higher-priced proposal was found to be superior”).

The RFP stated that “[a]s the technical merits of competing offers approach equal, price will become more important in any trade-off decision.” AR at 141. Despite the fact that here, the technical merits of the competing offers never approached equal, the SSEB conducted its best-value analysis in a manner that minimized the real differences between the proposals and created a false impression of equivalence, thus allowing the SSEB to base its decision largely on price instead of on the non-price factors. Cf. Johnson Controls, 2002 WL 1162912, at *10 (“Where, as here, the evaluation record evidences relative differences in proposal merit, general statements of equivalency are inadequate to show equivalency; the agency must compare the relative merits of the proposals in a manner that reasonably supports a determination of equivalency.”).

In minimizing the importance of the non-price factors, and thus elevating the relative importance of price, the SSEB deviated from the requirements of the RFP, which required a best-value procurement. Instead, the government has essentially conducted this procurement on a lowest-price technically acceptable basis. For that reason, the SSEB’s analysis and the subsequent award of the [Kansas City International Airport] MCI contract to intervenor was arbitrary, capricious, and not in accordance with law. See Femme Comp, 83 Fed. Cl. at 770 (setting aside a contract award because the government converted a best-value procurement into a lowest-price technically acceptable procurement by minimizing or downplaying the technical differences between the proposals).  (FirstLine Transportation Security, Inc. v. U. S. and Akal Security, Inc., No. 11-375C, September 27, 2011)  (pdf)


Failure to comply with Solicitation technical requirements

Red River claims that Sealift’s proposal did not comply with all the technical requirements of the Solicitation. As a result, it is asserted, the agency’s award was arbitrary and capricious. Red River also argues that by not requiring full compliance with the technical requirements, the agency improperly relaxed the requirements for Sealift, without affording the same to Red River, thereby violating the Competition in Contracting Act, 10 U.S.C. § 2305(a)(1)(A) (2000) (“CICA”).

The government argues that the minimum technical requirements involved are contained only in Section C-3 and M-3.1.1, and Sealift’s proposal covered all the required matters. The government further argues that if any requirements were not covered, the voids were filled by extrapolation or interpretation of photographs and drawings submitted, and/or by knowledge of what Sealift had done successfully in the past. “MSC determined that Sealift’s proposal provided an adequate level of detail by use of diagrams, photographs, narrative descriptions, and written and verbal responses to discussion questions.” (Dkt. 35 at 14.) Specifically, the government in its brief points to:

schematic diagrams showing the cocoon system that was previously offered and built on the Chapman. AR 1512-1514. Contrary to Red River’s assertions, these schematic diagrams illustrate what Sealift proposed to provide, i.e., a system of the cocoons that MSC has previously accepted as satisfying the requirements of a contract that Red River admits are identical to the cocoon requirements of the present solicitation. The schematic diagrams show the cocoon structures on both sides and on each of the four cross-sections of the vessel. Id. These diagrams, in conjunction with the photographs, narrative description, and inclusion of Attachment F in Sealift’s proposal enabled MSC to reasonably conclude that Sealift’s proposal provided an “adequate level of detail” as called for in Section L-7(a) and, therefore, it was equally reasonable for MSC to determine that Sealift fully satisfied the minimum technical requirements of the solicitation.

(Dkt. 35 at 22.) Finally, the government insists that any omission was minor and waivable at the agency’s discretion.

The Solicitation required more than Sealift submitted and the failure of the agency staff to present the TEC with all the evaluation criteria was arbitrary and capricious and in violation of procurement standards.

The Solicitation cautioned that the “Technical Volumes shall describe how the vessel meets the requirements and capabilities. . . . [T]he [specific and complete] technical data, documentation and supporting rationale” shall “demonstrate complete understanding and compliance with each of the requirements and how they will be met . . . . The Government will determine if an Offeror’s proposal is technically acceptable based on the information submitted.” (AR 215.) This language put potential bidders on notice that description of “how the technical requirements would be met” was material and that technical compliance would be measured by that support and warns that technical acceptability will be determined by the narrative of how the vessel meets or will meet the requirements, not simply that it will. Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 382 (2003) (discussing language of serious consequences for failure to comply).

As the court in Ashbritt, Inc. v. United States explained in enjoining an agency award for failure to follow the terms of the Solicitation:

It is a fundamental tenet of procurement law that proposals must be evaluated in accordance with the terms of the solicitation. FAR § 15.305(a) provides that, “[a]n agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation.” See also Hunt Bldg. Co. v. United States, 61 Fed. Cl. 243, 273 (2004) (“The agency’s failure to follow its own selection process embodied in the Solicitation is . . . a prejudicial violation of a procurement procedure established for the benefit of offerors.”); Banknote, 56 Fed. Cl. at 386 (“It is hornbook law that agencies must evaluate proposals and make awards based on the criteria stated in the solicitation.”); ITT Fed. Servs. Corp. v. United States, 45 Fed. Cl. 174, 194 (1999) (citations omitted) (“[A] contract award may not be upheld when the [source selection authority] improperly departs from [the] stated evaluation criteria in a solicitation.”).

No. 08-473C, 2009 WL 1872153, at *27 (Fed. Cl. June 25, 2009).

The court in L-3 Communications Eotech, Inc. v. United States, 83 Fed. Cl. 643, 653 (2008) similarly explained:

Technical evaluations should be consistent with the factors, subfactors and procedures outlined in the solicitation. See FAR 15.305(a), 48 C.F.R. § 15.305(a) (2007) (“An agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation.”); see also Dubinsky v. United States, 43 Fed. Cl. 243, 267 n.56 (1999) (noting that FAR 15.305(a) “does not grant contracting officers carte blanche to notify offerors of one rating system in the RFP and to then apply a different system during the evaluation of proposals”) (citations omitted); Kilgore Corp., B-253672, B-253685, B-253686, 93-2 CPD ¶ 220 (Comp. Gen. Oct. 13, 1993) (“While procuring agencies have broad discretion in determining the evaluation plan they will use, they do not have the discretion to announce in the solicitation that one plan will be used and then follow another in the actual evaluation.”) (citation omitted); Arltec Hotel Group, B-213788, 84-1 CPD ¶ 381, 1984 WL 44060 (Comp. Gen. Apr. 4, 1984) (“Consequently, it is improper for an agency to depart in any material way from the evaluation plan described in the solicitation without informing the offerors and giving them an opportunity to structure their proposals with the new evaluation scheme in mind.”) (citation omitted). When the evaluation of proposals materially deviates from the evaluation scheme described in the solicitation, the agency’s failure to follow the described plan may constitute evidence of arbitrary and capricious decision-making. See Dubinsky, 43 Fed. Cl. at 267 n.56 (noting that “[s]uch action is arbitrary and capricious and provides grounds for granting a protest if it prejudices unsuccessful offerors”). Minor irregularities alone, however, will not invalidate a procurement that is reasonable and otherwise not contrary to law. See Grumman Data [Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996)] (“‘De minimis errors are those that are so insignificant when considered against the solicitation as a whole that they can safely be ignored and the main purposes of the contemplated contract will not be affected if they are.’” (quoting Andersen Consulting [v. United States, 959 F.2d 929, 935 (Fed. Cir. 1992))

Proposals must be complete and conform to the Solicitation. See Int'l Res. Recovery, Inc. v. United States, 60 Fed. Cl. 1, 6 (2004) (“[I]t is well established that all offerors, including incumbents, are expected to demonstrate their capabilities in their proposals.”) (citation omitted). In Software Engineering Services, Inc. v. United States, 85 Fed. Cl. 547 (2009), the court found the Air Force acted reasonably in concluding the protestor’s submittal was incomplete. Its incumbent status was no substitute for submitting its ability to perform the Solicitation tasks.

The Air Force, however, acted reasonably in finding SES’s incumbent status an insufficient substitute for demonstrating its ability to perform the three mission areas in its proposal. “[I]t is well established that all offerors, including incumbents, are expected to demonstrate their capabilities in their proposals.” Int’l Res. Recovery, 60 Fed. Cl. at 6 (agency rejection of incumbent proposal was reasonable when incumbent failed to submit a mobilization plan in accordance with RFP, claiming it already was mobilized as the incumbent) (citation omitted); see also PGBA, LLC v. United States, 60 Fed. Cl. 196, 209-10 (2004) (record supported lowered rating for technical subfactor based on the incumbent’s “less-than-thorough proposal”), aff’d 389 F.3d 1219 (2004). Offerors are charged with preparing an adequately written proposal. Westech Int'l, Inc. v. United States, 79 Fed. Cl. 272, 296 (2007) (citation omitted). Thus, SES was required to demonstrate its capabilities within the proposal, and could not rely upon its incumbent contract performance as a substitute for information omitted from its proposal. See Int’l Res. Recovery, 60 Fed. Cl. at 6; PGBA, LLC, 60 Fed. Cl. at 209-10. SES was charged with adequately drafting its proposal to ensure compliance with the RFP.

85 Fed. Cl. at 555-56.

As a corollary of the principle that proposals must meet the requirements of a solicitation, blanket statements that an offeror will meet or exceed them have been found to be noncompliant. Int’l Outsourcing Servs., LLC v. United States, 69 Fed. Cl. 40, 49 n.9 (2005) (“Agency decisions rejecting blanket statements to the effect that an offeror will meet or exceed certain contract requirements or specifications have been upheld in a variety of settings.”).

To justify its selection of Sealift, the government cites the Declaration of Ms. Juanita Broennimann, the TEC chairperson, attached to a March 6, 2009 Motion for Summary Dismissal of the GAO protest. (AR 1494-98.) The Broennimann Declaration explains why the TEC determined that Sealift’s proposal met the minimum technical requirements. “[I]t was clear that Sealift understood the requirements of the solicitation and provided information that it was capable of meeting said requirements. The team had no reason to question the validity of Sealift’s statements.” (AR 1497.) The TEC relied upon Sealift having previously had a cocoon on one of its vessels, the Bennett, offered for similar purposes and its history of providing similar vessels to MSC with accordion style cocoons. (Id.) The March 6, 200927/ Declaration concluded that evaluators “had evidence” that supported their belief in Sealift’s compliance, to wit: (1) its cover letter that said “it previously had a cocoon on the vessel offered for similar purposes as those required under the subject solicitation” and “anticipated constructing a similar system” under the proposal; and (2) it had provided similar vessels to MSC with accordion style cocoons. (AR 1497.) Knowledge of field representative George Pearson, “who has been involved with the loading of all Air Force ammunition ships, [that] TSGT JOHN A. CHAPMAN had an accordion style cocoon when the vessel was under the previous charter” was also cited. (Id.)

The government has not pointed to these observations elsewhere in the AR and Mr. Pearson was not on the evaluation team. (AR 84 (TEC consisted of Juanita Broennimann (Chair), Timothy McLaughlin and James Hicks (both Marine Transportation Specialists), together with another “TBN” [to be named?] as evaluators and Elizabeth Bogart (Intern and Observer). The final evaluator was Lt. Col. Stephen Williams. (AR 1252-55, 1276-81, 1341, 1372-73.) 

Whether or not the evaluation team had any reason to doubt that Sealift could or would comply with what they understood to be the technical requirements is not the correct inquiry. Rather, the correct inquiry is whether the AR contains requisite support for a determination that Sealift’s proposal complied with all technical requirements of the Solicitation. The government has not pointed to support in the pre-award AR. See Axiom Resource Mgmt., 564 F.3d at 1381 (holding review is limited to agency record unless insufficient to “permit meaningful review consistent with the APA”). Furthermore, any consideration of Sealift’s performance in other contracts would have run counter to the TEP which prohibited undocumented personal opinion.

For the foregoing reasons, the court concludes, on the record evidence, that Sealift’s proposal was not evaluated on, and did not conform to, all the material technical requirements of the Solicitation and any determination to the contrary is arbitrary and capricious.

Sealift’s proposal did not detail how its vessel’s climate and humidity control system was going to meet the temperature and humidity specifications, did not describe the components of its security and communications systems, its maintenance plans or the cocoons, and how any of these met the RFP.

Turning to the second ground, it is asserted the relaxation of the RFP specifications violated the Competition in Contracting Act.

The CICA, 10 U.S.C. § 2305(a)(1)(A) (2000), requires solicitations for competitive proposals to include “all significant factors and significant subfactors which the head of the agency reasonably expects to consider in evaluating . . . competitive proposals . . . and the relative importance assigned to those factors and subfactors.” 10 U.S.C. § 2305(a)(2)(A)(I) (2000); see also, FAR 15.304(d). Agencies “shall evaluate . . . competitive proposals . . . based solely on the factors specified in the solicitation.” 10 U.S.C. § 2305(b)(1); 41 U.S.C. § 253b(a) (1994); see also Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 386-87 (2003), aff’d, 365 F.3d 1345 (Fed. Cir. 2004); Dubinsky v. United States, 43 Fed. Cl. 243, 266 (1999); Analytical & Research Tech., Inc. v. United States, 39 Fed. Cl. 34, 44 (1997); 48 C.F.R. § 15.305(a) (“An agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation.”).

Any relaxation of the terms of the Solicitation must be extended to all.

(a) When, either before or after receipt of proposals, the Government changes its requirements or terms and conditions, the [CO] shall amend the solicitation.

. . .

(d) If a proposal of interest to the Government involves a departure from the stated requirements, the [CO] shall amend the solicitation, provided this can be done without revealing to the other offerors the alternate solution proposed or any other information that is entitled to protection. 48 C.F.R. § 15.206(a) & (d) (parenthetical reference omitted).

Red River cites Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365 (Fed. Cir. 1999) in support of its alternative position that the result of MSC’s truncated technical review was a relaxation of the Solicitation standards for Sealift, which was not extended to Red River. In Alfa Laval, the awardee’s proposal to supply oil purifiers did not meet the exact testing standards of the Solicitation, but a “‘colossal price difference’” was proposed which apparently sweetened the offer. Like here, the Solicitation was for a lowest cost, technically acceptable proposal. Noting that the awardee’s proposal did not meet all the technical requirements, the Federal Circuit applied the ruling in Data General Corp. v. United States, 78 F.3d 1556 (Fed. Cir. 1996) and reversed the trial court’s conclusion that the protestor – Alfa Laval – the only other offeror – was not prejudiced because of the huge price difference.

As the trial court held, “regardless of the [technical review] panel’s view of the appropriateness of the standard [set out in the RFP], the Navy is strictly bound by its terms,” and in waiving a portion of the standard for [the awardee], the Navy violated a clearly applicable procurement statute and regulation, 40 Fed. Cl. at 230; see also 10 U.S.C. § 2305(b)(1) (1994) (“The head of an agency shall evaluate sealed bids and competitive proposals and make an award based solely on the factors specified in the solicitation.”); 48 C.F.R. § 15.606(a), (c) (1996) (requiring the government to issue a written amendment to a solicitation when it “changes, relaxes, increases, or otherwise modifies its requirements,” and to provide an opportunity for competitors to submit new or amended proposals when it prefers a proposal involving “a departure from the stated requirements”).

175 F.3d at 1367-68.

For reasons that are not readily apparent, the proposals were evaluated under criteria of an evaluation plan that did not encompass all the requirements of the Solicitation. The award to Sealift was based on relaxed standards not extended to Red River, in violation of the CICA.

Red River prevailing under either or both asserted theories, however, does not end the court’s inquiry.

(sections deleted)

The government alleges this procurement involves matters of national security because the vessel transports vital equipment and supplies to designated areas in support of combat operations worldwide. At the beginning of this Solicitation, on August 6, 2008, Air Force Major General Robert H. McMahon signed a statement of requirements for the United States Air Force’s (“USAF”) Prepositioned Ship Munitions program to replace the MV Fisher (“Fisher”)30/ which is under lease that expires on September 14, 2009. (AR 41-42.) “[W]e must ensure an adequate replacement vessel is identified to continue USAF Afloat Prepositioned Fleet (APF) mission. . . . [The] [r]eplacement vessel must be on lease approximately 90-days prior to the [Fisher] lease expiration between 08 and 18 Jun 2009. . . [and] should be at [Military Ocean Terminal, Sunny Point, North Carolina] and ready to accept cargo [no later than] 18 Jun 2009.” (AR 41-42.) Sealift’s delivery date has been pushed back to July 15th.

(sections deleted)

The court concludes that national security concerns militate against equitable relief with immediate impact. However, given the long term nature of the options in the contract awarded, it is concluded that the interests involved can best be balanced if the contract award to Sealift is limited to the initial performance period and one option. The initial approximately 3.5 month contract period and the first one year option may proceed if the government so desires. Limiting the award to this performance period recognizes the present urgent defense needs that must be promptly met, but mandates a reprocurement to cure the award deficiencies at the earliest point feasible consistent with satisfying these present needs.  (Red River Holdings, LLC, v. U. S., No. 09-185C, July 17, 2009) (pdf)


The court next addresses a dispute concerning the authority of the offerors’ program managers. Systems Research, Wyle, Booz Allen, and L-3 Services all described their respective program managers' on-site decision-making authority in their proposals. Specifically, Systems Research indicated that its program manager was “[. . .].” Id. at 8663. In addition, Wyle indicated that it would provide "[. . .]." Id. at 8824. Further, Booz Allen indicated that its “Officer-in-Charge” had the ability to “[. . .]” and that its program manager would serve as the “[. . .].” Id. at 8488-89. Finally, L-3 Services indicated that its “[. . .],” id. at 9586, and that [. . .] “[. . .],” id. at 9590. Yet, with respect to the on-site decision-making authority of the program managers proposed by these four offerors, the Source Selection Evaluation Board, when evaluating the proposals under the Technical/Management factor, assigned a [. . .] strength to Systems Research, id. at 10184, Wyle, id. at 10296, and Booz Allen, id. at 10352, but no strength at all to L-3 Services, id. at 10222-24.

L-3 Services argues that the Army’s failure to assign it a strength for the on-site decisionmaking authority of its program managers prevented it from achieving even higher technical superiority over Wyle and Booz Allen. L-3 Services Mot. 47-48. Defendant counters that the Army’s evaluation was reasonable, asserting that L-3 Services did not indicate in its proposal that its “[. . .].” Def.’s Mot. 63; accord Booz Allen Mot. 38.

Defendant’s position lacks merit. The court is unable to discern a meaningful difference among the following phraseology: [. . .]. Because each of the four offerors described similar onsite program manager decision-making authority and included its description the proper section of its proposal, the Army should have assessed strengths of a similar magnitude to each of these proposals. Because the Army evaluated the proposal of L-3 Services unequally, its evaluation lacked a rational basis.  (Femme Comp Inc., Technical and Project Engineering, LLC, L-3 Services, Inc., Data Systems Analysts, Inc., and Bearingpoint, Inc., v. U. S. and Savantage Financial Services, Inc., and Booz Allen Hamilton Inc., Nos. 08-409C, 08-419C, 08-432C, 08-454C, and 08-474C, September 30, 2008) (pdf)


Although minor irregularities or errors in the procurement process are not sufficient grounds to warrant judicial intrusion to overturn a procurement decision, Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996), the violation in this case was not minor. Rather, the violation described above deprived plaintiff of the opportunity to have its proposal considered fairly and honestly. Thus, the decision to have two evaluators circumvent the consensus and discussion requirements of the Technical Evaluation merits judicial intrusion.  (United International Investigative Services, Inc. v. U.S. and MVM, Inc., No. 98-80C, July 7, 1998)

U. S. Court of Federal Claims - Listing of Decisions

For the Government For the Protester
InSpace 21 LLC v U. S. and Range Generation Next, No. 15-364, September 7, 2016 FirstLine Transportation Security, Inc. v. U. S. and Akal Security, Inc., No. 11-375C, September 27, 2011  (pdf)
Dismas Charities, Inc., v. U. S. and Bannum, Inc., No. 04-304C, July 14, 2004 (pdf) Red River Holdings, LLC, v. U. S., No. 09-185C, July 17, 2009 (pdf)
  Femme Comp Inc., Technical and Project Engineering, LLC, L-3 Services, Inc., Data Systems Analysts, Inc., and Bearingpoint, Inc., v. U. S. and Savantage Financial Services, Inc., and Booz Allen Hamilton Inc., Nos. 08-409C, 08-419C, 08-432C, 08-454C, and 08-474C, September 30, 2008 (pdf)
  United International Investigative Services, Inc. v. U.S. and MVM, Inc., No. 98-80C, July 7, 1998
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