FAR 15.306 (d) (4):  Elimination from competitive range after discussions

Comptroller General - Key Excerpts

AFSI's protest challenges the agency's determination that AFSI's proposal was technically unacceptable. The protester further maintains that the agency improperly excluded AFSI's proposal from the competitive range following discussions, that the agency's discussions were not meaningful, and that the agency was biased in its conduct of this procurement.

Technical Unacceptability

In protesting the agency's determination of technical unacceptability, AFSI asserts that its proposal "provided all of the information required by the [s]olicitation and the PWS" and that, "[h]ad the agency properly and fairly evaluated AFSI's [revised proposal], the proposal would have been deemed acceptable." Protest at 12-13. More specifically, AFSI challenges the agency's various assessments of deficiencies and significant weaknesses.

By way of example, AFSI challenges the agency's basis for assessing a deficiency regarding AFSI's failure to include procedures to address each of the seven types of cleaning services identified in the PWS. In this regard, AFSI's initial protest asserts: "The evaluation criteria and the PWS did not require the [offeror's] procedures manual to include specific cleaning procedures that individually addressed seven types of services." Protest at 10. AFSI is mistaken.

Agencies are required to evaluate offers in accordance with a solicitation's stated requirements and evaluation criteria. The Boeing Co., B-311344 et al., June 18, 2008, 2008 CPD para. 114 at 38. Where a dispute exists as to the actual requirements of a solicitation, we will first examine the plain language of the solicitation. See, e.g., Carthage Area Hosp., Inc., B-402345, Mar. 16, 2010, 2010 CPD para. 90 at 5 n.7; W. Gohman Constr. Co., B-401877, Dec. 2, 2009, 2010 CPD para. 11 at 3-4.

As noted above, under the heading "Technical Acceptability," the solicitation expressly directed offerors to "[p]rovide a Procedures Manual or equivalent that includes all of the elements in the PWS." RFP amend. 3, at 270. Further, section of the PWS provided that the procedures manual "shall . . . describe the Contractor's cleaning methodologies using best commercial and industry practices appropriate for the types of cleaning required, [and] detail how the Contractor accomplishes each function of specialized, routine, and project work." Id. at 215. Finally, section 5.8.1 of the PWS stated, "The Government has defined seven (7) types of services for areas to be cleaned. The seven (7) types of services are defined below." Id. at 244. Directly following this provision, PWS sections through contained substantive descriptions for each of the seven required services. Id. at 244-47.

On the record here, we find no merit in AFSI's assertion that the agency's assessment of a deficiency was improper because the solicitation "did not require" AFSI's procedures manual to individually address the procedures to be employed for the seven types of required services. To the contrary, upon review of the solicitation provisions discussed above--including the requirements to "describe the Contractor's cleaning methodologies . . . for the types of cleaning required" and to "detail how the Contractor accomplishes each function of specialized, routine, and project work"--it is difficult to imagine how AFSI's obligation could have been more clear. Accordingly, AFSI's assertion that the solicitation "did not require" AFSI to address each required PWS service is without merit.

Next, AFSI challenges the agency's assessment of deficiencies flowing from AFSI's failure to provide performance standards and metrics that are applicable to the various PWS services. In this regard, AFSI asserts that it "provided detailed performance standards and performance metric reporting procedures throughout its revised Technical Proposal." Protest at 10.

The evaluation of technical proposals is a matter within the agency's discretion, since the agency is responsible for defining its needs and for identifying the best methods for accommodating those needs. U.S. Textiles, Inc., B-289685.3, Dec. 19, 2002, 2002 CPD para. 218 at 2. In this regard, our Office will not reevaluate technical proposals; rather, we will review a challenge to an agency's evaluation to determine whether the agency acted reasonably and in accord with the solicitation's evaluation criteria and applicable procurement statutes and regulations. Id. A protester's mere disagreement with the agency's judgments does not render the evaluation unreasonable. SDS Int'l, Inc., B-291183.4, B‑291183.5, Apr. 28, 2003, 2003 CPD para. 127 at 6.

As noted above, under the heading "Technical Acceptability," the solicitation directed offerors to "[p]rovide a Procedures Manual or equivalent that includes all elements in the PWS." RFP amend. 3, at 270-71. With regard to performance standards and metrics, the solicitation specifically stated:

The Procedures Manual or equivalent shall . . . demonstrate[] meaningful and measurable performance metrics that meet or exceed the AHE [American Healthcare Environmental] Practice Guidance for Healthcare Environmental Cleaning standards.

* * * * *

The Contractor shall establish performance standards aligned with industry's voluntary consensus standards (VCS) and in compliance with SAMMC-N Pam[phlet] 40-2, Infection Control Manual to meet the PWS requirements.

Id. at 215.

AFSI asserts that its proposal "is replete with performance standards and metrics." AFSI Comments, May 2, 2011, at 11. However, in supporting this assertion, AFSI relies on provisions in its proposal that relate to its quality control procedures--that is, procedures AFSI will employ to preclude or correct deficiencies in its contract performance. In this regard, AFSI states, [deleted]. Id. at 14. Similarly, AFSI refers to provisions in its proposal that indicate AFSI will [deleted]. Id.; AR, Tab 15, AFSI Revised Technical Proposal, at 8. AFSI maintains that these proposal provisions met the requirement to submit performance standards and metrics.

AFSI's reliance on its proposed quality control procedures as a basis for challenging the agency's deficiency assessment misses the point. That is, while these procedures address AFSI's actions to preclude or correct contract performance that has been or would be considered deficient, its proposal did not establish standards or metrics for determining the level of performance that will constitute deficient performance--which is precisely what the PWS provisions quoted above required. Accordingly, AFSI's various protest submissions provide no basis for challenging the agency's determination that AFSI's proposal failed to provide performance metrics and performance standards against which AFSI's actual performance of the various PWS requirements could be meaningfully measured.

We have further reviewed the agency record regarding all of the assessed deficiencies and significant weaknesses, and we find no basis to question any of the agency's assessments. As noted above, the solicitation expressly advised offerors that, to be evaluated as technically acceptable, a proposal must "contain[] no deficiencies or significant weaknesses," further warning that "any aspect of the proposal judged to be unacceptable may render the entire proposal unacceptable." RFP amend. 3, at 264-65, 80. Accordingly, based on the multiple deficiencies and significant weaknesses in AFSI's proposal, the agency reasonably concluded that the proposal was technically unacceptable. Further, in light of AFSI's failure to meaningfully address the multiple proposal flaws identified during discussions, the agency reasonably excluded AFSI from further consideration. See, e.g., Bannum, Inc., B-291847, Mar. 17, 2003, 2003 CPD para. 74 at 2-3; Moreland Corp., B‑291086, Oct. 8, 2002, 2002 CPD para. 197 at 3-4.  (Ahtna Facility Services, Inc., B-404913; B-404913.2, June 30, 2011)  (pdf)

Given that the evaluation of the two proposals appears reasonable, we now turn to the question of the competitive range determination. While it is true that a competitive range of one means that the competition is at an end, as noted above, we will not question a determination to establish a competitive range of one where the contracting officer had a reasonable basis to find that the excluded proposals lacked a reasonable chance of being selected for award. SDS Petroleum Prods., Inc., supra. From our review of the record, we find that the contracting officer met that standard here. As explained above, the record supports the agency's determination that the Alliance proposal was significantly technically superior compared to ISTC's proposal and offered a substantially lower price. The weaknesses identified in Alliance's proposal included minor matters, whereas the agency had significant concerns about ISTC's staffing and understanding of the work. We therefore see no basis to question the contracting officer's conclusion that ISTC's proposal had no reasonable chance of being selected for award.  (Information Systems Technology Corporation, B-291747, March 17, 2003)  (pdf)

The decision to exclude Bannum's proposal from the competitive range was reasonable. The solicitation specifically required offerors to provide documentation showing community support for the proposed site, RFP § L.8(i); an environmental assessment where, as in Bannum's case, new construction was contemplated, RFP §§ L.13, J, att. 2; an agreement with a hospital for 24-hour emergency service, statement of work (SOW) at 91; and a staff position to supervise offenders 24 hours a day, 7 days a week. SOW at 11. Clearly stated RFP requirements are considered material to the needs of the government, and a proposal that fails to conform to material terms is unacceptable and may not form the basis for award.  Beckman Coulter, B-281030, B‑281030.2, Dec. 21, 1998, 99-1 CPD ¶ 9 at 6. (The agency also has explained why the requirements are material, pointing out, for example, that it required a hospital agreement because it wanted assurance that inmates would have appropriate access to emergency medical services. Agency Report at 7-8.) Despite the clearly stated requirements, and despite being told in each of two rounds of discussions (one in the case of the environmental assessment) that its proposal did not meet the requirements, Bannum never submitted a compliant proposal.[3] Under these circumstances, BOP's decision to eliminate Bannum's proposal from the competitive range was reasonable.  (Bannum, Inc., B-291847, March 17, 2003)  (txt version)

As quoted above, the protester was specifically advised during written negotiations to address its low operating expenses and to specifically explain in detail how it would maintain the facility. The record further shows that the protester did not address the agency's concerns in writing in its revised proposal. Based on the agency's detailed e-mail request, it should have been reasonably clear to Moreland that the oral discussions had not resolved the agency's concerns. The record shows that not until the protester filed its comments to the agency report for this protest did it furnish any detailed written explanation of its operation and maintenance plan and the reasonableness of its operating expenses. Since agencies are required to evaluate proposals based on the content of the proposal itself, an offeror in a negotiated procurement must demonstrate its capabilities within the four corners of its proposal. Northwestern Travel Agency, Inc., B-244592, Oct. 23, 1991, 91-2 CPD P: 363 at 6. Since the protester's proposal failed to address the adequacy of its operations and maintenance plan as required by the SFO or to establish the reasonableness of its operating expenses, the agency reasonably eliminated the proposal from the competitive range.  (Moreland Corporation, B-291086, October 8, 2002)   (pdf)

OVC's initial proposal did not offer to perform a number of tests required under the RFP which the agency reasonably believed were crucial to show understanding and ability to produce the LME. During discussions, in response to the agency's question in this regard, OVC specifically refused to offer to perform the required testing. Accordingly, the agency reasonably rejected OVC's proposal as technically noncompliant.  (Outdoor Venture Corporation, B-288894.2, December 19, 2001) 

Comptroller General - Listing of Decisions

For the Government For the Protester
Ahtna Facility Services, Inc., B-404913; B-404913.2, June 30, 2011  (pdf) Symtech Corporation, B-289332, February 19, 2002  
MarLaw-Arco MFPD Management, B-291875, April 23, 2003  (pdf)  
Information Systems Technology Corporation, B-291747, March 17, 2003  (pdf)  
Bannum, Inc., B-291847, March 17, 2003  (txt version)  
A-1 Service Company, Inc., B-291568, January 16, 2003  (txt version)  
Moreland Corporation, B-291086, October 8, 2002  (pdf)  
D S Inc., B-289676, March 12, 2002  (PDF Version)  
John Carlo, Inc., B-289202, January 23, 2002    
Metcalf Construction Company, Inc., B-289100, January 14, 2002  (Pdf Version)  
Outdoor Venture Corporation, B-288894.2, December 19, 2001  
Novavax Inc., B-286167; B-286167.2, December 4, 2000  
Buckeye Park Services, Inc., B-282082, June 1, 1999  
OMV Medical, Inc., B-281490, February 16, 1999 (pdf)  

U. S. Court of Federal Claims - Key Excerpts

A. Zoning Proof for AWS and Bannum

1. Plaintiff’s Burden to Show Disparate Treatment

Plaintiff alleges that the BOP was more lenient regarding AWS’s proof of zoning than it was for Bannum’s proof of zoning. The court notes first that AWS and Bannum were not similarly situated as to their proposed properties. AWS is the incumbent contractor operating the same halfway house that it proposes in its offer. Bannum, in contrast, proposed to convert a vacant former auto parts store, the Calhoun Street property, into a halfway house. AR at 806. Adequate proof of zoning could reasonably differ for the two proposed facilities. See 48 C.F.R. § 1.102-2(c)(3) (2013) (“All contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same.”).

Furthermore, the BOP exercises discretion in determining the adequacy of proof of zoning, and its decisions in this regard will only be overturned if arbitrary and capricious. Bannum, Inc. v. United States, No. 07-109, 2007 WL 5172433, at *4 & n.4 (Fed. Cl. May 21, 2007). The solicitation did not specify what constitutes “valid proof” of zoning, but did indicate that failure to establish proof of zoning could “result in elimination prior to award.” AR at 45; see also id. at 208 (requiring “official documentation . . . [of] zoning approval”). Evidence of disparate treatment, in these circumstances, requires more than a simplistic comparison of the communications between the BOP and the two offerors regarding the proof of zoning requirement of the competition.

2. AWS Offered Adequate Proof of Zoning with Its Proposal

With its initial proposal AWS provided a 2011 letter from the zoning authority of Columbia, South Carolina which described the zoning for AWS’s existing halfway house, and noted that a certificate of occupancy had been issued to AWS for the use of that property as a halfway house in 1986. AR at 272-73. The BOP rationally concluded that AWS had submitted adequate proof of zoning with its proposal. Id. at 858-59. There is nothing arbitrary in that decision. Subsequently, as the BOP entered into discussions with AWS in September of 2013, several matters were addressed to improve AWS’s proposal. These included: (1) rectifying an incomplete attachment to the proposal (the Environmental Checklist); (2) updating the Price Proposal if needed; (3) addressing facility renovations; (4) providing credentials for therapeutic staff; and (5) providing a current proof of zoning letter from the city. AR at 924-26. Although plaintiff seizes upon this request as evidence that AWS’s proposal failed to contain adequate proof of zoning at the outset, there is nothing in the record to support that view. The subsequent request for a current proof of zoning letter, in the context of improving AWS’s proposal for possible award, does not indicate that the previously submitted zoning proof was in any way inadequate.

3. Bannum’s Proposal, Considered Twice by the BOP, Never Contained Adequate Proof of Zoning

In contrast, with its proposal Bannum submitted a letter from the city’s zoning authority stating that a special exception would be required from the Board of Zoning Appeals for Bannum’s proposed site, the Calhoun Street property, to be used as a residential care facility. AR at 511. Pursuant to the terms of the solicitation, proof of zoning was required within sixty days of proposal submission. Id. at 45, 208. Bannum was thus required to submit adequate proof of zoning by May 28, 2013. Bannum’s first attempt to provide adequate proof of zoning was an email dated June 14, 2013, id. at 934, announcing that it had received approval for a special exception for the Calhoun Street property, followed by the official letter confirming the approval of a special exception attached to an email dated June 27, 2013, id. at 807-09.

Pursuant to the terms of the solicitation, Bannum’s proof of zoning was late and as such constituted adequate reason to eliminate Bannum from the competition. AR at 45. The BOP eliminated Bannum from the competition for this reason on July 12, 2013. Id. at 810. There is nothing arbitrary or capricious in the BOP’s decision.

Once the BOP undertook corrective action in January 2014 and agreed to consider Bannum’s proposal despite the untimely submission of proof of zoning, a substantial amount of time had elapsed. It is clear from the record that Bannum knew, or should have known, that its special exception from the Board of Zoning Appeals for the Calhoun Street property had lapsed on December 1, 2013. AR at 809. Nonetheless, the record contains no evidence that Bannum attempted to timely obtain a current zoning special exception for the re-evaluation of its proposal.

On March 14, 2014, the BOP notified Bannum during discussions that its proof of zoning did not appear to be current, and that a condition of its zoning special exception did not conform to the solicitation’s requirements (that both violent and non-violent offenders be housed at the halfway house). AR at 1307. The BOP provided Bannum with two weeks to respond to this discussion notice, and upon request from Bannum, extended that deadline by another two weeks, to April 11, 2014. Id. at 1304, 1334. Bannum communicated to the BOP that its original proposed site for a halfway house, the Calhoun Street property, was no longer eligible for a zoning special exception, because a school had moved into a neighboring property, and outlined its intention to find a new site. Id. at 1326. The BOP warned Bannum that a change of site request would be untimely pursuant to the terms of the solicitation. Id. at 1334-35.

Bannum nevertheless submitted a site change request to the BOP on April 11, 2014, and noted that its prior zoning special exception had lapsed. AR at 1340. The alternate site is another vacant building, the Broad River Road property, and would require a zoning special exception that could not be considered by the Board of Zoning Appeals until June 4, 2014. Id. at 1340, 1391. The BOP eliminated Bannum’s proposal from the competitive range on April 17, 2014, noting that Bannum’s proof of zoning for the former site was too restrictive (excluding violent offenders) and apparently expired, and that the alternate site could not be accepted because the site change request was untimely. Id. at 1432, 1476. The court finds nothing arbitrary or capricious in the BOP’s decision to eliminate Bannum from the competition for these reasons, and finds, too, that the BOP’s corrective action was a reasonable effort to provide Bannum with a fair chance of competing for the residential reentry services contract.

Although Bannum asserts that disparate treatment regarding the proof of zoning requirement marred this procurement, the court finds none. AWS offered the BOP adequate and timely proof of zoning and Bannum did not. Because Bannum failed to comply with a material requirement of the competition, its proposal was eliminated. Plaintiff’s protest based on a charge of disparate treatment cannot be sustained on this record.  (Bannum, Inc. v. U. S. and Alston Wilkes Society, Inc., No. 14-429C, September 10, 2014)  (pdf)

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

For the Government For the Protester
Bannum, Inc. v. U. S. and Alston Wilkes Society, Inc., No. 14-429C, September 10, 2014  (pdf)  
Impresa Construzioni Geom. Domenico Garufi v. U.S., No. 99-400C, August 12, 1999  


Bona Fide Needs Rule
Public Laws
Courts & Boards

Rules & Tools

Small Business