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FAR
36.6: Architect - Engineer Services |
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Comptroller
General - Key Excerpts |
EII challenges
numerous aspects of the agency’s evaluation of its proposal
under the first two criteria. As discussed below, we see no
merit to the arguments.
In reviewing protests of alleged improper evaluations, our
Office examines the record to determine whether the agency’s
judgment was reasonable and in accord with the stated evaluation
criteria and applicable procurement laws. L-3 Commc’ns Westwood
Corp., B-295126, Jan. 19, 2005, 2005 CPD ¶ 30 at 5. It is an
offeror’s responsibility to submit a well-written proposal, with
adequately detailed information which clearly demonstrates
compliance with the solicitation and allows a meaningful review
by the procuring agency. CACI Techs., Inc., B-296946, Oct. 27,
2005, 2005 CPD ¶ 198 at 5. In this regard, an offeror must
affirmatively demonstrate the merits of its proposal and risks
the rejection of its proposal if it fails to do so. HDL Research
Lab, Inc., B-294959, Dec. 21, 2004, 2005 CPD ¶ 8 at 5.
Here, with regard to factor 1, professional qualifications
necessary for satisfactory performance of the required services,
the agency found that EII had listed projects for its key
personnel, indicating their experience with various courts. EII
did not, however, “elaborate on what work was done, what design
services were offered or what they offered/brought to the table
as experts,” nor did they “articulate any specifics that
demonstrate what they do or do not have expertise in.” AR, Tab
C, EII Consensus Evaluation at 1. Moreover, the agency noted
that EII did not provide information regarding cable or
telephone experience. Id. Similarly, regarding factor 2,
specialized experience and technical competence of the firm with
all of the Courthouse Technology electronic systems described in
the solicitation, the agency found that the information provided
by EII was overly brief and did not provide the technical
evaluation panel with adequate substantive information. Legal
Memo at 4. Specifically, the consensus evaluation report states
that, while EII listed various projects in its SF 330, EII did
not provide “the scope, duties performed, the details of the
project or a demonstration of their ability.” AR, Tab C, EII
Consensus Evaluation at 1. In addition, the agency found that
EII failed to discuss its experience with cabling or telephone
projects, so that the technical evaluation panel was unable to
identify any EII experience in those areas. Id.
As an initial matter, the record reflects that the protester
submitted a bare-bones proposal. In describing the experience
and qualifications of its various key personnel, EII simply
repeated the same generic statement for each representative
project--“designed electronic systems technology.” EII SF 330 at
3-6. Similarly, for each project example provided by EII to
illustrate its team’s qualifications, EII again, generically
repeated the same project description--“designed electronic
systems technology.” EII SF 330 at 7-16. EII faults the format
of the SF 330 for precluding more comprehensive responses. See
Protest at 7 (noting that “[o]fferors were only allowed to
submit their information within the confines of the SF 330”),
and 11 (noting that the SF 330 “does not lend itself to the
lengthy descriptions that the AOUSC would seem to require . . .
the amount and type of information able to be conveyed is
fixed”).
We note that the protester’s failure to submit a more detailed
proposal may have stemmed from its decision to use a PDF version
of the SF 330 form as opposed to completing the Microsoft
Word-based version of the form, both of which are available on
the General Services Administration’s (GSA) website. The
Microsoft-based version states the following: “The Word version
of this form is intended as a totally flexible document to allow
for photos, charts, and varying lengths of text. It is NOT
intended to look like the pdf version. Information requested is
identical.”(Emphasis in original). Other offerors made use of
the Word version to submit lengthy, illustrated, and informative
proposals, in stark contrast to the proposal submitted by EII.
In any event, regarding factor 1, the protester argues that some
of its key personnel achieved industry-recognized
certifications, and that those certifications should have
satisfied the agency’s desire to know what work these
individuals had done, what design services they offered, and
what the experts had contributed to the listed projects. See
Comments at 3-4. While the protester correctly identifies the
certifications listed for its personnel, these certifications
simply do not convey any information regarding the specific work
actually performed by its key personnel on the particular
projects listed. Rather, the only information regarding the
particular projects listed for EII’s key personnel was, as noted
above, the following statement: “designed electronic systems
technology.” There simply was no basis for the agency to have
inferred from the certifications of EII’s key personnel the type
of information that EII failed to include in its proposal.
Regarding factor 2, EII maintains that the examples and
descriptions of relevant projects should have warranted a higher
rating than marginal. Again, however, the project descriptions
provided by EII were generic and contained no meaningful detail
regarding the scope of the projects performed. This was in
contrast to the myriad of tasks to be performed as established
by the terms of the solicitation. Moreover, EII did not rebut
the agency’s finding that it failed to specifically address its
experience with cabling or telephone projects. Given the record
in this case, we have no basis to conclude that the agency
unreasonably evaluated EII’s proposal under factor 2. (Electronic
Interiors Inc., B-405576, November 18, 2011) (pdf)
EBA challenges
the agency's selection process, arguing that responding firms
were not adequately notified that the agency expected them to
provide cemetery designers as part of their teams and would rate
them significantly lower if they failed to do so. The protester
also argues that it was inconsistent with the terms of the
solicitation for the agency to assign equal weights to the
interview factors, and that it was improper for the agency to
base its selection decision solely on the interview round
scores.
In reviewing an agency's selection of a contractor (or
contractors) for A/E services, our Office will consider whether
the agency's selection was reasonable and in accordance with the
published criteria. OLBN Architectural Serv., Inc., B-402444.4,
B-402444.5, Oct. 4, 2010, 2011 CPD para. 55 at 3.
Turning first to EBA's argument about the agency's improper
reliance on the interview scores to make its selection
decisions, we agree with the protester, and we sustain the
protest.[4] At the outset, it is apparent from the record that
the agency, in essence, used a two-step evaluation and selection
process. Specifically, for the first step, the agency considered
the information submitted by the firms per the solicitation
instructions, and used the nine evaluation criteria established
in the solicitation to winnow the field down to the six
most-highly-rated firms. For the second step, the agency used
the scores from the interview round as the sole basis for the
agency's final selection, effectively abandoning any
consideration of the evaluation criteria established by the
solicitation. In this regard, the VA explicitly acknowledges in
its report that "[its] final evaluation consisted of the
evaluation of the oral interviews of the six short-listed
firms." Agency Report at 11. Moreover, the selection decision
memorandum solely discusses the interview results, and the final
interview ratings mirror the final ranking for selection.
In its defense, the agency argues that the selection was not
based solely on the interview round scores since the scores on
the written qualification packages determined which firms were
interviewed and asserts that ranking firms based solely on their
interview scores was proper, citing our decision in Brooks Range
Contract Servs., Inc., B‑401231, June 23, 2009, 2009 CPD para.
129. The agency's arguments are without merit.
First, our decision in Brooks Range is inapposite since the
issue before us in that case was whether, based on the terms of
the solicitation (which expressly provided for oral
presentations), the agency properly considered the content of
oral presentations as one element of its selection decision.
Here, the issue before us is whether it was proper for the
agency to consider only the content of the oral presentations in
its final selection analysis, and thereby abandon the
solicitation's stated evaluation factors.
Second, the fact that the scores assigned to the written
packages were used to determine which firms would be interviewed
fails to acknowledge that the ultimate selection decision was
determined entirely by the interviews. Abandonment of the
solicitation's stated evaluation factors in favor of the
interview scores was inconsistent with the terms of the
solicitation, which established nine specific criteria that
would be considered for selection, and never advised offerors
that interview scores would be of paramount significance in the
selection process (or advised of an interview round at all).
Moreover, the nine announced evaluation factors differed
materially from the interview evaluation factors. For example,
the solicitation's evaluation factors of commitment to small
business, and volume of work previously awarded to the firm by
the VA, were not considered in the evaluation of the interviews.
Thus, as explained above, when the agency based its selection
decision exclusively on the content of the oral interviews, it
failed to properly consider the specific evaluation factors
established by the solicitation. (EBA
Ernest Bland Associates, P.C., B-404825.5; B-404825.6,
October 11, 2011) (pdf)
This procurement
of A-E services is being conducted pursuant to the procedures set forth in the
Brooks Act, 40 U.S.C. sections 1101, 1104 (2002), and its implementing
regulations, Federal Acquisition Regulation (FAR) subpart 36.6. In accordance
with those regulations, on May 16, 2007, the EPA synopsized the requirement. The
procurement envisioned the award of two “response action contracts” (RAC), one
under full and open competition and one as a small business set-aside (RAC II);
the subject of this protest is the RAC II contract, which is to be awarded under
solicitation No. PR‑R9‑07‑10112. To be considered for negotiations with the
agency, firms were invited to submit a completed standard form (SF) 330 (A-E
Qualifications) detailing their qualifications to provide various A‑E services,
including site management; remedial investigation feasibility studies;
engineering services to design remedial actions; engineering evaluation and cost
analysis for one-time critical removal actions; construction management for
implementing remedial actions and one-time critical removal actions; enforcement
support; and other technical assistance.
(Sections deleted)
Oral Presentations
While the primary discriminator in the ranking determination was the personnel
staffing issue discussed above, the record shows that the agency also considered
the fact that HGL’s oral presentation was considered weaker than the other two
offerors’ presentations. AR, Tab 12, Ranking Determination, at 30. The specific
weaknesses are memorialized in a contemporaneous written summary of the
evaluation of the oral presentations, where the AEEB noted, for example, that
HGL did not present “an in-depth understanding of the Superfund that was
[commensurate] with the written proposal.” AR, Tab 11, AEEB Final Report, at 3.
While HGL vigorously disputes the agency’s evaluation, the agency’s
contemporaneous evaluation record contains a detailed summary of why the agency
considered HGL’s oral presentation, though sound, inferior to ITSI’s, and we see
nothing unreasonable in the evaluation.
On a related point, the protester argues that the oral presentations did not
satisfy the requirement for meaningful discussions in the FAR. The Brooks Act
and its implementing regulations in FAR subpart 36.6 provide that agencies
“shall conduct discussions with at least 3 firms to consider anticipated
concepts and compare alternative methods for furnishing the services.” 40 U.S.C.
sect. 1103(c) (2002); FAR sect. 36.602-3(c). The protester asserts that the
agency’s meetings with the offerors did not constitute adequate discussions
under the Brooks Act because the agency’s “failure to discuss any potential
weaknesses. . . negates any meaningfulness of any discussions.” Comments, Mar.
31, 2008, at 22. We disagree.
The questions that the agency posed to HGL more than adequately probed “concepts
and the relative utility of alternative methods of furnishing the required
services,” as provided in FAR sect. 36.602-3(c). Specifically, questions 7
through 13 asked for examples of innovative approaches, methods for implementing
certain processes, and examples of projects where certain processes were
successfully used. Each of those seven questions, nearly half of the 15
questions asked, dealt with the relative merits of various methods of delivering
services. In our view, this is precisely the kind of discussion that is
contemplated under FAR sect. 36.602-3(c). See URS Consultants, B-275068.2, Jan.
21, 1997, 97-1 CPD para. 100 at 5-6 n.4. Moreover, FAR sect. 36.602-3(c)
includes no requirement that, during discussions, an agency identify any
weaknesses in an offeror’s proposal; in fact, FAR sect. 36.601-3(b) states that
FAR part 15--which includes the requirement to discuss proposal deficiencies and
significant weaknesses with offerors whose proposals are included in the
competitive range--is inapplicable to A-E procurements under FAR subpart 36.6.
Id. In any event, the record clearly shows that the protester was advised of the
agency’s concerns with its proposed staffing during discussions. (HydroGeoLogic,
Inc., B-311263; B-311263.2, May 27, 2008) (pdf)
Therefore, Brooks Act procedures will not apply to a solicitation for both A-E
and non-A-E services if the A-E services do not constitute a substantial or
dominant extent of the work required. See Terra Surveys , supra ,
at 4 n.6; Consulting Eng'rs Council of Metro. Washington , B-211553, Nov.
7, 1983, 84-1 CPD Paragraph 92 at 3. Here, the parties agree that the
photogrammetry services in the contract-- i.e., surveying and making maps
through the use of aerial photography--are surveying services that are
"incidental services" under the Brooks Act. The protester has not refuted the
agency's statements that the government's inventory of base maps and photographs
is large, and that photogrammetry services will only be required in the rare
instance that the government does not have an existing map or photograph of an
area covered under a task order. Since there is nothing in the record to suggest
that photogrammetry services would be a substantial or dominant extent of the
work under this RFP, the photogrammetry services alone do not provide a basis to
require the agency to apply Brooks Act procedures to this RFP.
The protester asserts that the surveying
services required here are "traditional" or "incidental" A-E services, which are
required to be obtained under the Brooks Act. See 40 U.S.C.A Section 1102(2)(C).
The agency responds that the services included in this RFP (other than
photogrammetry services) are not professional services of an A-E nature or
"incidental services" that members of the A-E profession may logically or
justifiably perform. Previously, our Office had held that traditional surveying
services were not professional services of an A-E nature, and interpreted
"incidental services," as defined in the Brooks Act, to mean services performed
in conjunction with professional services of an A-E nature; therefore, we found
that the acquisition of surveying services alone did not require application of
Brooks Act procedures. See Ninneman Eng'g--Recon. , B-184770, Mar. 9, 1977, 77-1
CPD Paragraph 171 at 4-6. In response to our decisions, Congress amended the
Brooks Act definition of A-E services to the current statutory language. Pub. L.
No. 100-656, Section 742, 102 Stat. 3853 (1988); Pub. L. No. 100-679, Section 8,
102 Stat. 4055 (1988). Our Office reviewed the corresponding legislative
history, which revealed that Congress considered that the decisions by our
Office had interpreted the definition of A-E services more narrowly than was
intended, particularly in the case of surveying and mapping services. Forest
Serv., Dept. of Agriculture--Request for Advance Decision , supra , at 4. We
accordingly amended our test for identifying A-E services to reflect the amended
statutory language now in force. Based on that amendment, and specifically the
"incidental services" portion of the definition of A-E services, 40 U.S.C.A.
Section 1102(2)(C), we now first identify whether a service is the type which is
incidental to professional services of an A-E nature, and if so, whether the
service is one which members of the architectural and engineering profession may
logically or justifiably perform. Forest Serv., Dept. of Agriculture--Request
for Advance Decision , supra , at 4-5. Consistent with the language in the
statute that surveying and mapping services are "incidental services," we have
since held that "traditional" surveying services are "incidental services"
requiring application of Brooks Act procedures, and have rejected agency
determinations to the contrary. White Shield, Inc. , B-235967, Oct. 30, 1989,
89-2 CPD Paragraph 392 at 2-3 (cadastral surveying services); Fodrea Land
Surveys , B-235413, Oct. 19, 1989, 89-2 CPD Paragraph 364 at 1-2 (same); White
Shield, Inc. , B-235522, Sept. 21, 1989, 89-2 CPD Paragraph 257 at 2-3 (same).
Here, however, the RFP does not solicit traditional surveying services, and the
protester has not shown that the services solicited are incidental to
professional services of an A-E nature which members of the A-E profession (and
individuals in their employ) may logically or justifiably perform. The
contractor will not perform land surveys or produce maps reflecting land surveys
(except for the photogrammetry services discussed above). Rather, the contractor
will be primarily identifying and recording the location of flora, fauna and
cultural resources using existing maps. According to the agency, and not
rebutted by the protester, this work has traditionally been performed by field
biologists and archeologists ( i.e. , field technicians) using compass and
camera to crudely record the locations of target species on existing maps. The
advent of commercially available GPS equipment has made the recording of
location more efficient, but it has not changed the nature of this activity from
one of life sciences to one of architecture, engineering or surveying. According
to the agency, the required professional expertise has always been, and
continues to be, knowledge of what to locate on an existing map, not how to
identify geographic position with the accuracy and reliability of a professional
surveyor. There is nothing in the protest record demonstrating that the mere use
of GPS equipment to identify location should be considered surveying services.
The GPS system was not developed for the surveying or the A-E professions;
rather, GPS is a satellite-based positioning system operated by the Department
of Defense (DOD). RFP Section C.7.2.7. In recent years, GPS technology has
become available to the general public, and many fields, both professional and
non-professional, have applied the technology to their particular uses. The
agency states, and the protester does not deny, that the A-E profession has only
developed and applied GPS (and GIS technologies) to A-E work in the past 10
years. We note that at the same time other segments of society have developed
and applied GPS technology to just about any activity in which geographic
location is of relevance. According to the agency, one such application has been
by the natural resources community to record the location of transient
biological resources. Specifically with regard to the services solicited under
the RFP, a biologist or other field technician walks the land, notes where a
given species being observed is at that point in time, and records and reports
that information. We agree with the agency that the fact that such a biological
field study adopts modern technology to record and report field observations
does not transform the activity from that of a biological field study to
something else. In this regard, the agency reports that the advantage of using
GPS equipment to record the location of field observations is the ease with
which the field technician can determine his or her location at any point in
time simply by pressing a button on the GPS equipment without needing to
reference any other point on the land. Thus, the record provides no basis to
consider this activity to be surveying services that would customarily be
performed by a professional surveyor, or by other A-E professionals or
individuals in their employ. (Photo Science, Inc.,
B-296391, July 25, 2005) (pdf) |
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Comptroller
General - Listing of Decisions |
|
For
the Government |
For
the Protester |
|
Electronic Interiors Inc.,
B-405576, November 18, 2011 (pdf) |
EBA Ernest Bland Associates, P.C.,
B-404825.5; B-404825.6, October 11, 2011 (pdf) |
|
HydroGeoLogic, Inc., B-311263;
B-311263.2, May 27, 2008 (pdf) |
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Photo Science, Inc., B-296391, July
25, 2005 (pdf) |
|
|
U.
S. Court of Federal Claims - Key Excerpts |
In paragraph 4 of the subject synopsis, the
COE listed the selection criteria for
firms with which it would engage in negotiations for potential
undefined A-E [Hazardous Toxic
and Radiological Wastes] HTRW
services. AR 14-18. The selection criteria were listed in
descending order of importance,
meaning the first criterion listed was most important and the
last criterion listed was least
important. Four criteria, (A)-(D), were designated as “primary
selection criterion,” AR 14,
and were listed as follows:
(A) Minimum requirements for professional qualifications. AE
Firms need
to show the organization of the team that will support the HTRW
contract as well as the qualifications of the staff on that
team. The same person can meet the experience requirements of
more than one position. The following are experience
requirements for various positions on the team: . . . .
(B) AE firms shall show specialized
experience and technical competence in: . . . .
(C) AE Firms shall show capacity to
maintain schedules and accomplish required work in the
required time and at the required quality level.
(D) AE firms shall show past performance on
DOD and other contracts with respect to cost control, quality
of work, and compliance with schedules. AR 15-18.
Following the listing of criteria (A)-(D),
the synopsis contained a “NOTE” which read, in relevant part,
“[c]riteria (E)-(G) are secondary and will only be used as
‘tie-breakers’ among firms which are rated as technically equal
after the interview phase of the selection process.” AR 18. The
synopsis then listed the secondary criteria, again in descending
order of importance, as follows: (emphasis added)
(E) AE firms shall show Small Business
(SB) and Small DisadvantagedBusiness (SDB) participation. Show
how SBs and SDBs were utilized in
projects.
(F) AE firms shall show geographic
proximity.
(G) AE firms shall show volume of DoD
contract awards over the past 4
years. Describe nature of work performed for each contract and
the dollar
amount.
(sections deleted)
3. The selection board’s decision to use an
overall adjectival rating for
each firm rather than rate each criterion individually is not
arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with
law.
The plaintiff argues that the
COE’s selection process was not in compliance with
federal procurement law because it did not evaluate and compare
each announced
selection criterion individually using a rating method. Pl.’s
Mot. 17-18. The plaintiff
argues that the COE’s internal guidance, which provides that a
“board can use any
qualitative method, such adjectival or color coding, to evaluate
and compare the
qualifications of the firms relevant to each selection
criterion,” EP 715-1-7 ¶ 3-8(d),
should be read with FAR 36.6 to show that not only must the COE
consider each of the
criteria under FAR 36.602-1, but that it must also evaluate each
such criterion using some
type of rating method. The plaintiff contends that absent
knowing the underlying ratings
that were assigned to the component parts that made up a
ranking, there is no way for a
reviewing court to determine whether there is a rational basis
for the selection board’s
conclusion on the final overall ranking of a firm. See Pl.’s
Mot. 27 (analogizing the final rating to a numerical score
comprised of four unknown numerical criteria scores and
arguing that a reviewing court would be unable to know whether
the arithmetic was
conducted properly to reach the final numerical score without
knowing the underlying
numerical scores); Pl.’s Reply 8.
The defendant argues that the language of EP 715-1-7 ¶ 3-8(d),
which also prohibits
numerical scoring, EP 715-1-7 ¶ 3-8(d) n.11, provides the agency
with broad discretion to
determine what type of qualitative method to use, so long as it
is applied fully and equally
to each candidate firm. The defendant argues that the one type
of rating that the regulatory
guidance does not permit is the type of formulaic numerical
scoring the plaintiff suggests.
Def.’s Reply 6. Moreover, the defendant argues that there was
nothing inherently
prejudicial about the selection process because all of the firms
were evaluated using the
same process in compliance with agency protocol laid out in
Engineering Pamphlet EP
715-1-7, Architect-Engineer Contracting, in which each
individual board member
evaluated each firm against the announced criteria before coming
to a final consensus
ranking. Def.’s Mot. 22-23; see also AR 1657.
This court’s role is limited to determining
whether, taking the record as a whole, the
decision was rational and supported. Ryder Move Mgmt, Inc. v.
United States, 48 Fed. Cl.
380, 389 (2001). Here, when the record is examined as a whole,
and in particular the
narrative rationale, it shows that while the selection board
chose only to provide overall
adjectival ratings for each firm, it did in fact evaluate each
separate primary selection
criteria for each candidate firm. See Florida Power & Light Co.
v. Lorion, 470 U.S. 729, 744 (1985) (holding that challenges to
an agency’s procurement decision should be
sustained if, inter alia, the “agency has not considered all
relevant factors”). The
underlying narrative rationale reported for each criterion for
each firm demonstrated that
the selection board had evaluated and distinguished [Firm C] and
Weston under all of the
primary selection criteria. See DeTekion Security Systems,
B-298235, et al., 2006 CPD ¶
130 at 7 (Comp. Gen. July 31, 2006) (“Source selection officials
have broad discretion in
determining the manner and extent to which they will make use
of, not only the adjectival
ratings . . . but also the written narrative justification
underlying those technical results,
subject only to the tests of rationality and consistency with
the evaluation criteria.”).
As explained earlier, the selection board
report described the basis for each ranking,
with the rationale broken down for each of the primary selection
criteria. * * * * The
narrative corresponds with the comprehensive evaluations of each
firm’s submitted
materials performed by each selection board member. Compare AR
1692-1857 with AR
1884-2039, 2066-2222. The interview worksheets filled out by
each selection board
member during the April 22 interviews with the highly qualified
firms also demonstrates
evaluation of each of the selection criteria. Compare AR 1666-91
with 1858-83, 2040-65.
As these narratives show, the selection
board did in fact evaluate each firm with
respect to each of the primary selection criteria, and, * * * *,
the evaluations of [Firm C]
and Weston were not the same. This court cannot say that the
differences noted were
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law
simply because the selection board did not assign an adjectival
rating to each selection criterion. However, as explained infra
Part II.B.4., this court also cannot say that the
differences noted demonstrate that Weston and [Firm C] were not
rated as technically
equal prior to the final ranking decision, thereby triggering
the necessary evaluation of the
“tie-breaker” criteria. (Weston
Solutions, Inc. v. U. S., No. 10-511C, October 25, 2010)
(pdf)
In paragraph 4 of the subject synopsis, the
COE listed the selection criteria for
firms with which it would engage in negotiations for potential
undefined A-E HTRW [Hazardous Toxic
and Radiological Wastes]
services. AR 14-18. The selection criteria were listed in
descending order of importance,
meaning the first criterion listed was most important and the
last criterion listed was least
important. Four criteria, (A)-(D), were designated as “primary
selection criterion,” AR 14,
and were listed as follows:
(A) Minimum requirements for professional qualifications. AE
Firms need
to show the organization of the team that will support the HTRW
contract as well as the qualifications of the staff on that
team. The same person can meet the experience requirements of
more than one position. The following are experience
requirements for various positions on the team: . . . .
(B) AE firms shall show specialized
experience and technical competence in: . . . .
(C) AE Firms shall show capacity to
maintain schedules and accomplish required work in the
required time and at the required quality level.
(D) AE firms shall show past performance on
DOD and other contracts with respect to cost control, quality
of work, and compliance with schedules. AR 15-18.
Following the listing of criteria (A)-(D),
the synopsis contained a “NOTE” which read, in relevant part,
“[c]riteria (E)-(G) are secondary and will only be used as
‘tie-breakers’ among firms which are rated as technically equal
after the interview phase of the selection process.” AR 18. The
synopsis then listed the secondary criteria, again in descending
order of importance, as follows: (emphasis added)
(E) AE firms shall show Small Business
(SB) and Small DisadvantagedBusiness (SDB) participation. Show
how SBs and SDBs were utilized in
projects.
(F) AE firms shall show geographic
proximity.
(G) AE firms shall show volume of DoD
contract awards over the past 4
years. Describe nature of work performed for each contract and
the dollar
amount.
(sections deleted)
4. The selection board report is too ambiguous to determine
whether
the plaintiff ranked fourth or whether the board needed to
consider the
“tie-breaker” criteria.
Finally, the plaintiff argues that the selection board failed to
provide an explanation
for ranking the plaintiff below the third place firm despite
apparently assigning the
plaintiff a higher rating than that firm, thereby demonstrating
that the COE’s ranking
decision lacked a rational basis. Pl.’s Mot. 16-17. The
plaintiff contends that the
description of the final ratings in the written narrative
indicates that Weston, (was) * * * *
overall rated higher than [Firm C] * * * * . See AR 1661-62
(emphasis added).
Alternatively, the plaintiff argues that if these rating
descriptions are in error, the final
rating sheet is ambiguous and might be read as giving [Firm C]
the same ratings as Weston. Under this argument, the plaintiff
contends that it was rated as technically equal
with [Firm C] after the interview phase and that the final three
“tie-breaker” criteria should
have been evaluated for those two firms. The plaintiff contends
that if the “tie-breaker”
criteria were evaluated then it would have a substantial chance
to be ranked third, ahead of
[Firm C], and be in a better position to negotiate an A-E HTRW
services contract with the
COE. The defendant concedes that
the written narrative appears to describe Weston as
rated higher than [Firm C]. Def.’s Mot. 13; see AR 1661-62. The
defendant contends the
written description for [Firm C]’s rating was in error as
evidenced by the final ratings
score sheet labeled “Final” which it reads as rating [Firm C]
technically superior to
Weston. As described above, the
final score sheet included ratings from each board member
and included two ratings of “Excellent -” and a third rating of
“Good +” for Weston and
two ratings of “Excellent -” and a third rating with an arrow
pointing from “Good +” to
“Excellent -” for [Firm C], as follows:
|
Board Member |
[Member 1] |
[Member 2] |
[Member 3] |
|
[Firm C] |
Excellent - |
Excellent - |
Good +
-> |
|
Weston |
Good + |
Excellent - |
Excellent - |
AR 1654. It is this third rating of
[Firm C] that makes all the difference.
The court agrees with the plaintiff that
the final ratings sheet is ambiguous with
respect to whether [Firm C] received a third score in the upper
range of “Good” or in the
low range of “Excellent” on the basis of an arrow pointing from
“Good +” to “Excellent -
.” The selection board’s intended meaning for the arrow is only
further confused by the
selection board report’s narrative. In the narrative, the
written descriptions of the ratings
for [Firm A], Weston, [Firm E], and [Firm F] exactly tracked the
final score sheet.
Compare AR 1654 with AR 1660, 1662, 1663, 1664. However, the
written description for
[Firm C], * * * * did not track the final rating * * * * . As
explained above, this court’s
role is limited to determining whether, taking the record as a
whole, the decision was
rational and supported. Ryder Move Mgmt., 48 Fed. Cl. at 389.
The propriety of an
agency’s decision to rank one firm as technically higher than
another turns “on whether
the contracting agency’s judgment concerning the significance of
that difference was
reasonable in light of the solicitation’s evaluation scheme. In
this regard, adjectival
ratings . . . are but guides to, and not substitutes for,
intelligent decisionmaking.”
DeTekion Security Systems, 2006 CPD ¶ 130 at 7. Here, when the
record is examined as
a whole, and in particular after careful review of the final
ratings score sheet and the
written descriptions in the narrative rationale, there is no
explanation provided for this discrepancy. While, the standard
of review does not charge this court with holding the
COE to a mistake-free analysis, this court cannot determine
whether the COE provided a
“coherent and reasonable explanation of its exercise of
discretion” where none is given.
Axiom Res. Mgmt., 564 F.3d at 1381.
Clarification of [Firm C]’s final rating is
important, because if [Firm C] was rated
as technically equal with Weston after the interview phase of
the selection process, then
criteria (E)-(G), the “tie-breaker” criteria, should have been
evaluated. AR 18. After such
an evaluation, the plaintiff may ultimately be ranked third,
ahead of [Firm C], and be in a
better position to negotiate an A-E HTRW services contract with
the COE. Therefore, the
court concludes that the plaintiff was prejudiced by the
selection board’s failure to
articulate a coherent and reasonable explanation of its final
ratings prior to ranking [Firm
C] third and the plaintiff fourth. (Weston
Solutions, Inc. v. U. S., No. 10-511C, October 25, 2010)
(pdf) |
|
|
U.
S. Court of Federal Claims - Listing of Decisions
|
|
For
the Government |
For
the Protester |
|
Weston
Solutions, Inc. v. U. S., No. 10-511C, October 25, 2010
(pdf) |
Weston
Solutions, Inc. v. U. S., No. 10-511C, October 25, 2010
(pdf) |
|
|
