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FAR 15.305 (a):  Evaluation based solely on factors and subfactors specified in solicitation

Comptroller General - Key Excerpts

New In reviewing protests challenging an agency's evaluation of proposals, we do not independently evaluate proposals. Rather we review the record to determine whether the agency's evaluation was reasonable and consistent with the terms of the solicitation and applicable statutes and regulations. Metis Solutions, LLC et al., B-411173.2 et al., July 20, 2015, 2015 CPD ¶ 221 at 4. 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, inadequately documented, or not reasonably based. Id.

We conclude that the agency's review of ME's proposal was not consistent with the terms of the solicitation's evaluation criteria. The record shows that the agency performed only a superficial, perfunctory review of the ME proposal to identify instances where ME allegedly did not fully comply with the instructions for proposal preparation. However, the agency did not meaningfully evaluate the substance of the ME proposal, as required by the solicitation's evaluation criteria.

As an initial matter, we point out that nothing in the RFP's evaluation criteria advised offerors that the agency would perform a preliminary, pass/fail compliance check of proposals to determine whether the offerors had complied strictly with the solicitation's proposal preparation instructions. Agencies are required to evaluate proposals exclusively based on the evaluation factors stated in the solicitation. While a solicitation may establish additional informational, technical, administrative, or other requirements in the instructions for proposal preparation, those requirements may not properly be considered in connection with the evaluation of proposals--and correspondingly may not provide a basis for eliminating a proposal from consideration--unless those additional requirements also are specified as a basis for proposal evaluation. Metis Solutions LLC. supra. at 5 n. 6; Veterans Evaluation Services, Inc., et al., B-412940, et al., July 13, 2016, 2016 CPD ¶ 185 at 16 n. 21.

Here, the record shows that the agency exclusively identified only instances where ME allegedly failed to comply strictly with the solicitation's proposal preparation instructions as a basis for finding the proposal unacceptable. See AR, exh, 15, Contracting Officer's Compliance Checklist; exh. 16 Cost Price Analyst Review Memorandum; exh. 17, Contract Specialist's Compliance Memorandum; exh. 18, Source Selection Authority's Clearance Memorandum, Noncompliance Briefing, and Memorandum for the Record. However, as noted, nothing in the solicitation's evaluation criteria advised offerors that the agency would perform a preliminary pass/fail compliance check to determine whether the firms had prepared their proposals in strict conformance with the solicitation's proposal preparation instructions.

The agency argues that the solicitation's evaluation factors did, in fact, advise offerors of (and contemplate) the compliance review performed by the agency. In this connection, the agency points to the following language included in the solicitation:

Award will be made to a single Offeror who is deemed responsible, whose proposal conforms to the solicitation requirements (to include all stated terms, conditions, representations, certifications, and all other information required by Section L and Section M of this solicitation), and whose proposal represents the most advantageous offer to the Government.

RFP at 154. While this language generically describes the basis for the agency's award decision, it does not describe the evaluation factors that the agency would use to evaluate proposals, and, in fact, appears under the heading "Basis for Contract Award." That clause is followed by another section of the solicitation entitled "Evaluation Criteria" which is where the actual evaluation factors are described. Notwithstanding this distinction, neither the "Basis for Contract Award" section, nor the evaluation criteria, advised offerors that their proposals could be rejected for failure to adhere to the proposal preparation requirements.  (McCann-Erickson USA, Inc. B-414787: Sep 18, 2017)


As described above, the RFP established two criteria for offer acceptability, one of which was proposing aircraft that met a list of minimum requirements. RFP § D7. In its combined comments/supplemental protest, Phoenix argues that Tempus identified seven specific aircraft (each identified by its tail number) in volume I of its proposal, but failed to provide the required aircraft questionnaire form for one of them. In this regard, Tempus listed a [DELETED] bearing tail number [DELETED] as the second on-call aircraft in its pricing proposal. See AR Tab 8, Tempus Proposal, vol. I, at 2. However, Tempus’s technical proposal did not include an aircraft questionnaire form for that aircraft. Instead, Tempus provided an aircraft questionnaire form for a different aircraft (a different tail number, also a [DELETED]) as its second on-call aircraft. AR Tab 8, Tempus Proposal, vol. II, at 44.

Initially, Interior responded that the offer acceptability evaluation was to determine whether the proposal offered to meet basic aspects of the RFP, thus the RFP required specific information about each aircraft the offeror was proposing to use “as well as [its] FAA Registration Number” for offer acceptability, and “Tempus provided the required information.” AR at 5.

However, after Phoenix pointed out that Tempus had identified two different aircraft for its second on‑call aircraft, the agency abandoned its initial contention that the RFP required specific information for each proposed aircraft, and its related contention that Tempus had provided the required information. Instead, the agency now argues that only the aircraft make and model were “integral to the offer.” Compare AR at 3, with Supplemental AR at 3-4. As a result, the agency now contends that the conflicting aircraft registration numbers have no impact on the offer acceptability evaluation. Supplemental AR at 4.

Our Office will review a protester’s challenge to an agency’s technical evaluation, by examining the record to determine whether the agency’s evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. CACI-ISS, Inc., B-412074, Dec. 21, 2015, 2016 CPD ¶ 35 at 6 n.6.

Interior’s view that Tempus’s proposal met the acceptability criteria despite proposing one aircraft in its § A2 table but providing an aircraft information form about a different aircraft, is unreasonable and inconsistent with the RFP. The RFP expressly required offerors to identify each aircraft by its unique FAA registration number. The RFP also required specific information for each of those aircraft, such as its total hours of service for the airframe and for each engine, the most recent weight and balance test, and all modifications to the aircraft. Tempus’s proposal identified a specific aircraft, but then provided information about a different aircraft. As a result, the conclusion that Tempus’s proposal was acceptable under the offer acceptability criteria was unreasonable, so we sustain this ground of protest.  (Phoenix Air Group, Inc. B-412796.2,B-412796.3: Sep 26, 2016)


Ascella maintains that the agency applied an unstated evaluation criterion when it evaluated the protester’s quotation under the technical excellence evaluation factor. The RFQ provided that quotations would be evaluated under the technical excellence factor based on the following narrative provision:

The Offeror will be evaluated to determine the extent to which the Offeror demonstrates an understanding of the Performance Work Statement, Attachment 1 of the RFQ. The Offeror’s plan should demonstrate requisite experience and expertise in supporting Enterprise Resource Planning (ERP) accounting systems and interfaces. The Plan shall be evaluated to determine the extent to which the Offeror demonstrates experience and expertise in providing business architecture support and software development. The Plan shall be evaluated to determine the extent to which the Offeror demonstrates their ability to provide an applications helpdesk. The Offeror will be evaluated on their ability to provide surge support.

RFQ at 5. According to the protester, the agency unreasonably downgraded its quotation--assigning it only an acceptable, rather than a higher, rating--for failing to provide details of its approach to accomplishing various aspects of the requirement. Ascella argues that the RFQ did not require such details, but only required Ascella to demonstrate its experience, expertise and understanding of the agency’s requirement.

We find no merit to this allegation. In reviewing protests challenging an agency’s evaluation of quotations or proposals, our Office does not reevaluate the quotations or proposals, or substitute our judgment for that of the agency; rather, we review the record to determine whether the agency’s evaluation was reasonable and consistent with the solicitation’s evaluation criteria, as well as applicable statutes and regulations. FP-FAA Seattle, LLC, B-411544, B-411544.2, Aug. 26, 2015, 2015 CPD ¶ 274 at 7. While solicitations must inform offerors of the basis for quotation or proposal evaluation, and the evaluation must be based on the factors set forth in the solicitation, agencies are not required specifically to list every area that may be taken into account, provided such areas are reasonably related to, or encompassed by, the stated criteria. MicroTechnologies LLC, B-403713.6, June 9, 2011, 2012 CPD ¶ 131 at 3.

Here, the RFQ specifically advised firms that their quotations would be evaluated to determine the extent to which they demonstrated an understanding of the performance work statement (PWS). RFQ at 5. It is axiomatic that demonstrating an understanding of the PWS necessarily involves the vendor detailing the actions and approaches it intends to use to accomplish performing the agency’s requirement.

Ascella has not taken issue with any of the agency’s substantive evaluation findings made in connection with various elements of the PWS, and apparently believes instead that it was not required to provide any information beyond generalized representations concerning its experience, expertise and understanding of the agency’s requirements. However, the record shows that the agency made a number of reasonable, specific evaluation findings where Ascella simply failed to provide any information concerning how it would accomplish certain of the solicitation’s requirements. The record shows that Ascella failed to provide any details for how it would maintain standard operating procedures and work instructions, as required by PWS element C.1.2.a; failed to provide any information about a transition out plan, as required by PWS element C.1.2.c; failed to describe a plan to install desktop software, as required by PWS element E.1.1.c; failed to describe a plan for annual account review, as required by PWS element E.1.1.g; and failed to address software configuration and turnover, as required by PWS element D.1.1.d. AR, exh. 30, Technical Evaluation Report, at 7.

(sections deleted)

The protest is denied in part and dismissed in part.  (Ascella Technologies Inc. B-412679, B-412679.2: Apr 27, 2016)  (pdf)


As noted, one of the RFP’s evaluation factors required offerors to demonstrate their experience in performing services of a similar nature to those being solicited. RFP at 375. The evaluation factor specifically required offerors to demonstrate their prior experience in performing one or more prior contracts for a minimum of one year as either a prime contractor, or as a joint venture, and precluded consideration of an offeror’s prior experience if that experience had been gained as a subcontractor, or had been gained by the offeror’s proposed key personnel. Id. The RFP’s instructions to offerors provided as follows:

The Offeror must demonstrate experience as either a PRIME CONTRACTOR OR JOINT VENTURE within the last 5 years from the date of this solicitation providing contract services that are similar to the scope of Operations and Maintenance, custodial, and grounds maintenance services being required by this solicitation. Experience as a SUBCONTRACTOR or KEY PERSONNEL will not be considered . . . .

RFP at 367 (emphasis in original).

The record shows that SDS submitted five examples of its experience. AR, exh. 8, SDS Proposal Excerpt. In evaluating the SDS proposal, the evaluators concluded that four of SDS’s experience examples could not be considered because they were for less than the 1-year duration specified in the RFP for experience examples. AR, exh. 14, SSEB Report, at 28. The evaluators did consider SDS’s remaining experience example and concluded that it was very relevant, and for work very similar to the solicited requirement; based on these conclusions, the evaluators assigned the SDS proposal a good rating for the experience factor. Id. at 28-29. The record shows that this experience example was performed by a joint venture known as DL JV; the agency credited SDS with this experience because one of its joint venturers, Dae Sung, was one of the DL JV joint venturers. AR, exh. 12, SDS Experience Evaluation, at 2.

QSI argues that the RFP only permitted consideration of the experience of the offeror itself and, since SDS has no experience as a joint venture, its proposal should have been found unacceptable under the experience factor.[3] QSI argues that the agency improperly evaluated SDS’s experience by considering the experience of DL JV, even though SDS did not perform the contract either as a prime contractor in its own right, or as a joint venture comprised of the two concerns that make up SDS, Dae Sung, LLC, and Siege Enterprises, LLC.

We agree with the protester that the agency improperly credited SDS with the experience of DL JV. As noted above, the RFP expressly limited the offerors’ experience examples to those where “the offeror” was either the “prime contractor” or “joint venture” performing the experience example. RFP at 367. Here, the contract considered by the agency in evaluating SDS was one performed not by “the offeror,” SDS, but by an entirely different entity, DL JV. While it is true that one of SDS’s joint venturers also was a member of DL JV, that fact does not meet RFP criteria for consideration; that is, the actual offeror here, SDS, was not the joint venture that had performed the experience example.

We point out that, in contrast to the evaluation of SDS, the agency apparently used a strict interpretation of the RFP in its evaluation of QSI. The record shows that three of QSI’s experience examples had been performed by QSI’s major subcontractor, [DELETED]. AR, exh. 9, QSI Proposal Excerpt. GSA apparently concluded that it was required to exclude consideration of these experience examples--even though [DELETED] had been the prime contractor performing them--because it determined that [DELETED] was not the “prime contractor” or a “joint venture” proposing to perform the solicited requirement. AR, exh. 13, QSI’s Experience Evaluation, at 5-7.  (Quality Services International, LLC, B-410156, B-410156.2, B-410156.3: Nov 3, 2014)  (pdf)


As an initial matter, we note that GPO procurements are governed by GPO’s Printing Procurement Regulation (PPR),[3] rather than the Federal Acquisition Regulation (FAR). Nevertheless (just as in the case of ordinary quotations and purchase orders under the FAR), GPO purchasing regulations specify that a quotation is not an offer; rather, the quotation is informational, the purchase order is the offer, which the vendor may accept expressly or through performance (unless the purchase order specifies the means of acceptance). PPR Part VII, § 4; see generally FAR § 13.004.

P&S argues that GPO applied an unstated evaluation factor by failing to allow P&S a reasonable time--two hours--to review and confirm its quotation, and that GPO lacks a valid basis to issue the purchase order to a higher-priced vendor. Protest at 3-4.

GPO argues that P&S should have expected a review-and-confirm call between 2:00 p.m. (when quotations were due), and 4:00 p.m. (when, GPO explains, its business day ends). In this regard, the agency points to a statement in the RFQ that “Furnished Material will be available for pickup by 08/06/2014.” RFQ at 1. The agency argues that this statement implied that it planned to issue the order on August 6 between the 2:00 p.m. deadline and GPO’s 4:00 p.m. closing time.

The parties agree that GPO has a practice of making review-and-confirm calls to vendors. This review-and-confirm process is not addressed in the PPR, however. The agency argues that its process has practical benefits, such as alerting the agency to the possibility that a vendor may no longer wish to receive the order. On the other hand, GPO has not shown that the process is required (or even anticipated) by the PPR or any other GPO policy.

It is not the purpose of our bid protest function to squelch the use of innovative techniques by contracting officials. When a protest is filed, however, we will review the record to assess whether an agency has complied with requirements for competition, has conducted the procurement consistent with regulations and the terms of its solicitation, and has treated vendors fairly. See, e.g., Tipton Textile Rental, Inc., B-406372, May 9, 2012, 2012 CPD ¶ 156 at 12 (although agency was not obliged to conduct discussions in simplified acquisition, once it did so, it was required to treat competitors fairly); Russell Enters. of N. Carolina, Inc., B-292320, July 17, 2003, 2003 CPD ¶ 134 at 3 (GAO reviews simplified acquisitions to ensure that the procurements are conducted consistent with a concern for fair and equitable competition and with the terms of the solicitation).

GPO’s actions violate a fundamental premise of government procurements: that offerors must be advised of the bases upon which their proposals (or quotations, as here) will be evaluated. H.J. Group Ventures, Inc., B-246139, Feb. 19, 1992, 92-1 CPD ¶ 203 at 4. Specifically, it was unreasonable for the contracting specialist to provide P&S approximately 48 minutes to respond to a telephone call, when nothing in the RFQ alerted P&S that the agency’s process anticipated such a short response time. Further, there is nothing in the record suggesting that P&S would fail to deliver the pens just as its quotation submitted several hours earlier indicated it would. In short, GPO points to nothing that would cast doubt on P&S’s ability or intention to accept and perform the order. See AeroSage LLC, B-409627, July 2, 2014, 2014 CPD ¶ 192 at 5.

Based on our review of the contemporaneous record and GPO’s explanations to our Office, the agency’s decision to effectively reject P&S’s quotation, and make award to a KD8 at its higher price, lacks a valid legal basis. As P&S does not challenge the review-and-confirm process itself, we express no view on its use per se. Rather, the record reflects that GPO did not provide notice that, as a condition for award, the successful vendor would have to respond affirmatively to a review-and-confirm call in an unusually short time of less than an hour.

We are not persuaded by GPO’s arguments that, as an experienced contractor, P&S should have been able to infer what the agency intended to do, or that the language in the RFQ regarding “Furnished Material . . . available for pickup by 08/06/2014,” RFQ at 1, provided notice to vendors that they should be prepared to confirm their interest to GPO shortly after the RFQ closing time. If GPO wanted such a short “review and confirm” period, it should have made its intentions known in the solicitation, so that vendors would be on notice that GPO would “move on” to another vendor if no response was received in that time. GPO issued the order to a higher-priced vendor without a valid legal basis so we sustain the protest.  (Premiums & Specialties, Inc.. B-410247: Nov 13, 2014)  (pdf)


Here, we conclude that the evaluation was consistent with the terms of the RFP, and not premised on unstated evaluation criteria. As reviewed above, the PWS requires a staffing model that delivers required field services/deskside support. RFP at 40. Regarding the submission of proposals, the RFP established that the proposals should address “the extent to which the offeror proposes a workforce with the requisite skillsets, knowledge and capabilities that demonstrates the proposed staffing is adequate and sufficient to perform the PWS requirements.” Id. at 145. The RFP further advised offerors that USCIS [U.S. Citizenship and Immigration Services] would evaluate various aspects of staffing, including the extent to which an offeror’s proposal presented a “staffing plan, organizational structure and model capable of supporting Program Management,” the “extent to which the offeror proposes a workforce with the requisite skillsets, knowledge and capabilities in support of their technical solutions,” and would conduct “an assessment of the offeror’s proposed labor categories and mix that details the sufficiency and adequacy as it relates to their proposed technical solution.” RFP at 145.

In this context, the protester incorrectly argues that the agency was prohibited from evaluating whether an offeror’s proposed staffing approach was adequate to fulfill the requirements of the PWS for each USCIS location, or from assigning weaknesses if an offeror’s proposal failed to provide sufficiently detailed staffing information to allow for such an assessment. Further, Harris is misplaced in its contention that the agency’s analysis was improper where the proposals were not required to include a “staffing plan” with their proposals. As the agency points out, the required post‑award “staffing plan” was a specific document addressing the certifications of various personnel and did not provide for the submission of the offeror’s detailed approach to staffing to fulfill the terms of the PWS. Rather, we conclude that the offeror’s staffing model was to be provided in the proposal and evaluated by the agency. See, e.g., RFP at 40, 145.

In sum, although the RFP may not have specifically directed offerors to substantiate the adequacy of their staffing models to meet the requirements of the PWS on a site-by-site basis, the RFP did clearly provide for an evaluation of the capability of the staffing models to meet the PWS requirements, which included providing support at various USCIS field office and service center locations. In evaluating proposals, 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. Independence Constr., Inc., B-292052, May 19, 2003, 2003 CPD ¶ 105 at 4. It is an offeror’s responsibility to submit a proposal that establishes its capability and the technical merits of its proposed approach, and allows for a meaningful review by the procuring agency in accordance with the evaluation terms of the solicitation. See Verizon Fed., Inc., B-293527, Mar. 26, 2004, 2004 CPD ¶ 186 at 4.  (Harris Corporation, B-409869: Sep 4, 2014)  (pdf)


Logistics first contends that (National Geospatial-Intelligence Agency) NGA improperly abandoned the stated evaluation scheme when reviewing the proposals of Logistics and AC4S under the technical/management factor. We agree. Based upon our review of the contemporaneous record, we find that the agency failed to follow the solicitation’s stated scheme in evaluating proposals under the personnel subfactor, and we sustain the protest on this basis. We find no merit to Logistics remaining challenges to the agency’s technical/management evaluation.

As discussed above, the solicitation stated that the agency would assign one of five adjectival ratings to proposals under each of the three subfactors of the technical/management factor: outstanding, good, acceptable, marginal, or unacceptable. The solicitation provided that the personnel subfactor would be evaluated based upon “the extent that” the proposed personnel meet the solicitation’s requirements. RFP at 122.

In its report on this protest, NGA acknowledged that the highest assessment an offeror could achieve under the personnel subfactor was “Meets the Standard.” Supp. AR (Sept. 5, 2013), at 16. In this regard, the agency concluded that it would not assign any minor, major, or significant strengths under this subfactor, and instead would only assign weaknesses if an offer failed to meet the solicitation’s requirements. Id. The agency further explained that, in its view, “[a]n offeror may propose personnel that are above the solicitation requirements, but that does not [mean] those people will perform better.” Id. Further, the agency “did not give more credit for people [with] more experience/education because more experience/education was not considered to provide any advantage for the employee performance of the positions under this [contract].” Id. For these reasons, the agency explained, the maximum rating an offeror could receive for this evaluation subfactor was “good,” which denoted that the offeror had met the minimum requirements; offerors were not eligible to receive an outstanding rating, as indicated in the solicitation. Id. at 16.

Where, as here, the RFP provides for award on a best value basis, as opposed to selection of the lowest-priced, technically acceptable offer, the evaluation of proposals cannot be limited to determining whether a proposal is merely technically acceptable. Systems Research & Applications, Corp.; Booz Allen Hamilton, Inc., B-299818 et al., Sept. 6, 2007, 2008 CPD ¶ 28 at 24. Rather, proposals must be evaluated to identify their relative qualities under the stated evaluation factors, including the degree to which technically acceptable proposals exceed the stated minimum requirements, or will better satisfy the agency’s needs. Id.

When evaluation criteria are written in the manner utilized here by the agency, and where proposals are to be evaluated for technical merit on a qualitative basis, an offeror can reasonably expect that a proposal that exceeds the minimum requirement will receive a more favorable evaluation than one that merely meets the requirement. See Trijicon, Inc., B-244546, Oct. 25, 1991, 91-2 CPD ¶ 375 at 5. Based upon our review, we conclude that the terms of this solicitation clearly advised offerors that technically superior proposals would be favored over proposals that merely met the minimum solicitation requirements. See RFP at 122.

In addition, our review of the record, and the agency’s own statements, lead us to conclude that the agency’s assessment under the personnel subfactor failed to follow the solicitation’s evaluation scheme. Specifically, the RFP did not advise offerors of the agency’s view that an offer to exceed the solicitation’s personnel requirements provided no benefit to the government, and did not advise offerors they would not receive credit for exceeding the minimum requirements of the solicitation. As a result, the agency’s evaluation did not consider whether the protester’s proposal offered any advantages based on the experience and capabilities of Logistics’ proposed staff, or whether this experience provided a basis to discriminate between Logistics’ and AC4S’s proposals under this subfactor. Instead, the agency simply found that both offerors met the minimum requirements. As a result, the proposals were viewed as equal in technical merit, despite any differences that may have existed in this area.

We also find that Logistics was prejudiced by the agency’s improper evaluation. As discussed above, the agency did not advise offerors that it would not assign a higher rating for a proposal that exceeded the solicitation’s minimum requirements regarding personnel. Since the agency failed to consider the relative merits of the offerors’ proposed personnel, we have no basis to conclude whether this review would or would not have changed the agency’s view of this competition. See Kellogg, Brown & Root Servs., Inc.--Recon., B-309752.8, Dec. 20, 2007, 2008 CPD ¶ 84 at 5. Accordingly, we sustain the protest on this basis.  (Logistics 2020, Inc. B-408543, B-408543.3, Nov 6, 2013)  (pdf)


Coburn asserts that the VA improperly evaluated Coburn’s experience/capability based on an unstated evaluation criterion. Protest at 8-9. The protester argues that the RFP did not require offerors to submit a list of subcontractors, but that the RFP only requires the successful contractor to submit a list of subcontractors for each individual task order. Id. The protester points out that failure to submit a subcontractor list was the sole weakness assessed against Coburn’s proposal under the experience/capability factor, and it argues that, but for this improper assessment, Coburn would have received a higher rating under that factor, and overall, because the agency identified other strengths in Coburn’s proposal. Comments at 5. Coburn contends that the VA’s best value determination and source selection decision was flawed because it was based on improper technical evaluations. Id. at 2-4; Protest at 9-10.

The VA concedes that the RFP did not identify submission of a subcontractor list as an evaluation criterion. AR at 7-8; Contracting Officer’s (CO) Statement at 1. However, the agency argues that, contrary to the protester’s belief, Coburn’s negative past performance rating, not its failure to include a subcontractor list, contributed to Coburn’s overall satisfactory rating. The agency suggests that the protester was not prejudiced by the SSEB’s assessment of a weakness under the experience/capability factor, because it was not assessed as a “significant weakness” and because it did otherwise impact Coburn’s overall rating. See AR at 7-8, 11.

In reviewing protests of an agency's evaluation, our Office does not reevaluate proposals, rather, we review the evaluation to determine if it was reasonable, consistent with the solicitation’s evaluation scheme, as well as procurement statutes and regulations, and adequately documented. Wackenhut Servs., Inc., B-400240, B-400240.2, Sept. 10, 2008, 2008 CPD ¶ 184 at 6; Cherry Road Techs.; Elec. Data Sys. Corp., B-296915 et al., Oct. 24, 2005, 2005 CPD ¶ 197 at 6.

Here, the RFP explicitly stated that “[t]he contractor shall submit a list of subcontractors to be used on each individual task order.” RFP at 17 (emphasis added). As the protester points out, and the agency acknowledges, the RFP did not require offerors, in their proposals, to list their proposed subcontractors. Nor did the RFP state that the agency would evaluate proposals in that regard. As described above, the solicitation indicated that the agency would evaluate a list of items that offerors were to provide in their technical proposals. Id. at 9-11. Specifically, the RFP enumerated six criteria under the experience/capability evaluation factor that offerors were to address in their proposals: experience and capability managing construction projects; proposed key personnel; current workload and staffing; quality control; infection control; and safety. Id. at 10. Nowhere does the RFP instruct or otherwise suggest that offerors were to identify or list proposed subcontractors, either under the experience/capability evaluation factor, or the past performance and price factors.

Contrary to the agency’s arguments, it is uncertain whether Coburn’s experience/ capability rating, and ultimately Coburn’s overall rating, would have remained the same, where only one weakness was assessed, improperly, against Coburn’s proposal, and where it was otherwise assessed multiple strengths. In other words, we have no basis--and we decline the VA’s invitation--to speculate about how the SSA would have viewed the relative merits of Coburn’s and Abrams’ proposals; we cannot conclude that the agency’s source selection decision would not have proceeded differently given the paucity of information in the contemporaneous record regarding the agency’s cost/technical trade-off. Since we resolve any doubts regarding competitive prejudice in favor of the protester, and since the protester has shown a reasonable possibility that it was prejudiced by the VA’s action, we sustain Coburn’s protest that the agency applied an unstated evaluation criterion in evaluating the protester’s technical proposal. See Kellogg, Brown & Root Servs., Inc.--Recon., B-309752.8, Dec. 20, 2007, 2008 CPD ¶ 84 at 5.  (Coburn Contractors, LLC B-408279.2, Sep 30, 2013)  (pdf)


Cost Savings Evaluation

Next, NPP and INPS protest that the agency’s evaluation of the offerors’ proposed cost savings failed to comply with the provisions of the solicitation. More specifically, the protesters assert that the agency’s source selection decision ignored section M of the solicitation wherein the agency committed to assess the feasibility and size of the each offeror’s proposed cost savings. We agree.

It is a fundamental procurement principle that agencies must evaluate proposals consistent with the terms of a solicitation and, while evaluation of offerors’ proposals is generally 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. Excelis Systems Corp., B-407111 et al., Nov. 13, 2012, 2012 CPD ¶ 340 at 5; Public Commc’ns Servs., Inc., B-400058, B-400058.3, July 18, 2008, 2009 CPD ¶ 154 at 17. Contracting officials do not have the discretion to announce in the solicitation that they will use one evaluation plan, and then follow another without informing offerors of the changed plan. Kumasi Ltd./Kukawa Ltd. et al., B-247975.7 et al., May 3, 1993, 93-1 CPD ¶ 352 at 7. Further, while source selection officials may reasonably disagree with the evaluation ratings and results of lower-level evaluations, they are nonetheless bound by the fundamental requirements that their independent judgments be reasonable, consistent with the stated evaluation factors, and adequately documented. AT&T Corp., B-299542.3, B-299542.4, Nov. 16, 2007, 2008 CPD ¶ 65 at 16; AIU N. Am., Inc., B-283743.2, Feb. 16, 2000, 2000 CPD ¶ 39 at 8-9.

Here, in evaluating offerors’ proposals under one of the most heavily weighted evaluation factors, management approach/cost savings, the solicitation expressly stated that the agency: (1) would evaluate the feasibility and quality of an offeror’s management/cost savings approach, and (2) would “also evaluate and assess the feasibility and the size of the proposed cumulative savings to the Government.” RFP at 334. The record establishes that the SSA’s source selection decision failed to reflect any meaningful assessment of the feasibility and size of proposed cost savings.

As discussed above, although he performed no independent cost savings analysis, the SSA elected to consider feasible every cost savings dollar proposed by every offeror--effectively ignoring the documented contrary conclusions of the agency’s own financial management specialists. COSF/MOL for NPP Protest at 21; COSF/MOL for INPS Protest at 16; Tr. at 356. Specifically, in addition to considering “feasible” portions of the offerors’ cost savings that the [cost savings advisory committee] CSAC had specifically determined to be “not reasonable,” the SSA did not consider the CSAC’s documented conclusion that a significant portion of the awardee’s proposed cost savings were “NOT clearly documented,” appeared to constitute “soft savings,” or were otherwise unsupported. See AR, Tab E.9, Cost Savings Summary. Further, notwithstanding the CSAC’s documented concerns regarding inadequate support, the agency declined to seek additional information from the offerors during discussions.

In reviewing this matter, we have considered, and rejected, various agency arguments and rationalizations purporting to justify the agency’s actions. By way of overview, the agency asserts that (1) the solicitation did not require quantification of feasible cost savings; (2) requests for additional information from the offerors were not warranted; (3) the solicitation’s “gateway” provision eliminated the requirement to consider the feasibility and size of proposed cost savings; and (4) the protesters were not prejudiced by the agency’s actions. We discuss each of these assertions below.

First, the agency maintains that the SSA appropriately determined that all of the cost savings proposed by all of the offerors were feasible because the solicitation “never contemplated that the agency would attempt to quantify--to the point where a specific dollar amount was identified for each offeror--the proposed cost savings to be achieved.” NNSA Post-Hearing Brief, Apr. 2, 2013, at 5.

We agree that the solicitation did not require the agency to calculate a “specific dollar amount” of feasible cost savings for each offeror. However, by providing that the agency would “evaluate and assess the feasibility and the size of the proposed cost savings,” the agency was required, at a minimum, to make a reasonable assessment of the relative magnitude of feasible cost savings proposed by each offeror. That obligation was not met by the SSA’s blanket conclusion that all proposed cost savings by every offeror were feasible, nor by the SEB’s conclusion that all proposed cost savings, except those the CSAC had specifically determined to be unreasonable, were feasible. While we agree that something less than calculation of a “specific dollar amount” was required, the unsupported assumptions by both the SEB and the SSA were inadequate and unreasonable.

Next, with regard to its failure to seek additional information from the offerors during discussions, the agency maintains that its inaction was appropriate because “we would have [had] to go back and ask for [information for ] all 161 initiatives” and, in any event, the agency “did not think [the offerors] could give us the information.” Tr. at 1120.

Regarding the amount of additional information at issue, the agency has provided no explanation as to why it believes it would have had to seek additional information for all 161 initiatives--since the CSAC clearly identified a portion of those initiatives as being reasonable and supported. With regard to the agency’s contention that the offerors would be unable to provide additional supporting information, we think the agency’s contention is illogical. On the one hand, the agency maintains that the cost savings are feasible while, on the other hand, it contends that the very offerors who proposed those “feasible” cost savings will be unable to provide further explanation and support for them. Finally, the agency’s assertion regarding the unavailability of supporting cost savings information appears to be inconsistent with the record here. As noted above, the majority of the offerors’ proposed cost savings relate to workforce reductions. NNSA Post-Hearing Brief at 14. In this regard, the SSA’s source selection decision specifically states that, “under the M&O model . . . personnel/HR costs are specific, hard numbers that are base-lined and traceable.” AR, Tab G.1, Source Selection Decision, at 11. On the record before us, we find unpersuasive the agency’s position that requests for additional information from the offerors were unwarranted.

Next, the agency maintains that the solicitation’s “gateway” provision effectively excused the agency from performing a meaningful pre-award analysis of the offerors’ proposed cost savings. NNSA Post-Hearing Brief at 17, 20; see RFP at 21. Under this provision, in order to be eligible for exercise of a contract option, the awardee must have achieved, by the end of the third year, at least 80 percent of the cost savings that it proposes to achieve by that time. The agency maintains that the SSA reasonably concluded that all offerors’ proposed cost savings were feasible because the offerors knew that the contract will not be extended beyond the 5-year base period if the awardee fails to achieve a significant portion of the savings proposed. Accordingly, the agency maintains that the solicitation’s “gateway” provision established a safeguard against the offerors’ proposals of unrealistic cost savings. We disagree.

Even if the agency enforces the solicitation’s “gateway” provision, the safeguard on which the agency relies has no effect until the end of the five-year base period, when the agency may decline to exercise a contract option. At that point, the agency will have spent a significant portion of the $22.8 billion estimated value of this contract. The purpose for performing the required cost savings evaluation before award is to provide some level of confidence that the source selection decision reflects the savings that are most likely to be achieved. Accordingly, the agency’s reliance on the solicitation’s “gateway” provision, which takes effect only after five years of contract performance, does not absolve the agency of the requirement to meaningfully assess the feasibility and size of the proposed cost savings prior to award.

Finally, the agency asserts that there is no prejudice to the protesters because they were all treated equally. Among other things, the agency contends that NPP actually benefitted from the agency’s approach because it was [redacted]. See AR, Tabs E.11 at 6, E.12 at 6.

On the record here, there is no reasonable basis to determine whether little, much, or most of each offeror’s proposed cost savings are, in fact, feasible. For example, the record provides virtually no basis for determining that more than [redacted] percent of the awardee’s proposed cost savings are feasible. On the record here, we have no basis to determine whether a meaningful analysis, based on additional information, would have established that significantly higher portions of the protesters’ cost savings were feasible. Accordingly, we reject the agency’s assertion that there is no potential prejudice to the protesters.

In conclusion, we sustain the protests based on the agency’s failure to reasonably evaluate the feasibility and size of the offerors’ proposed cost savings, as required by the terms of the solicitation.  (Nuclear Production Partners LLC; Integrated Nuclear Production Solutions LLC, B-407948, B-407948.2, B-407948.3, B-407948.4, B-407948.5, B-407948.6, B-407948.7, B-407948.8, Apr 29, 2013)  (pdf)


Caduceus also claims that the agency used unstated evaluation criteria in identifying the following as weaknesses in the protester’s proposal: its failure to offer a dedicated quality control manager, to identify any specific quality control plan, and to devise quality control metrics related to patient outcomes. Caduceus asserts that the RFP did not require offerors to provide this information.

Although agencies are required to identify in a solicitation all major evaluation factors, they are not required to identify all areas of each factor that might be taken into account in an evaluation, provided that the unidentified areas are reasonably related to or encompassed by the stated factors. Master Lock Company, LLC, B-309982.3, Dec. 10, 2008, 2009 CPD ¶ 6 at 5.

We do not find that the Army used unstated evaluation criteria in evaluating Caduceus’s proposal. With regard to the lack of a dedicated quality control manager, the RFP specifically informed offerors that their quality control plans would be evaluated for the ability to resolve and prevent quality assurance problems. RFP at 70. Addressing project quality management in its proposal, Caduceus indicated that its project director has overall quality control and project management responsibility, and stated that, to properly monitor performance, Caduceus’s project director performs [DELETED]. AR, Tab 15, Protester’s Proposal, Vol. II, at 6. In its evaluation, the Army questioned the plausibility of having one person be responsible for the competing (and potentially conflicting) demands of operation and quality assurance requirements, and concluded that it was “not an ideal solution for an effective [quality assurance] program”—in short, a weakness. AR, Tab 17, Consensus Technical Evaluation, at 4. The agency explains, and the protester does not dispute, that a “basic [tenet] of Quality Systems is the separation of production/management and quality control/assurance responsibilities.” Id. Caduceus’s proposal suggested that the same person would be responsible for these roles, and did not indicate anyone else would be assigned to manage quality assurance or quality control, and the agency took that information into account in evaluating the protester’s approach. In our view, the agency’s consideration of the protester’s approach to managing or staffing its quality control plan is reasonably encompassed within the quality control plan evaluation subfactor.  (Caduceus Healthcare, Inc., B-407791, Feb 21, 2013)  (pdf)
 


Price Evaluation

Colt argues that the Army did not apply the 5-percent royalty adjustment in the solicitation to the other offerors’ total evaluated prices. Instead, Colt contends that the agency improperly applied the royalty adjustment only to certain portions of the proposed prices, based on an undisclosed interpretation of the license agreement between the government and Colt.

In response, the Army argues that the terms of the license agreement mandate the application of the royalty only to the portions of the M4/M4A1 carbine that are proprietary to Colt. Additionally, the agency alleges that Colt’s interpretation of the solicitation is unreasonable, and is inconsistent with the license agreement the solicitation provision is implementing.

As shown by the Army’s response, this dispute requires a review of the license agreement between the government and Colt--which was not a part of this solicitation. During the course of this protest, the Army provided a copy of the license agreement, which provides as follows:

[DELETED] by GAO

AR, Tab 19, M4 Carbine Addendum to Technical Data Sales and Patent License Agreement, Article VII Royalties, at 13-14.

Our review of the record shows that the Army did not apply a 5-percent royalty adjustment to the total proposed prices for the non-Colt offerors. Instead, as Colt has argued, the agency interpreted the solicitation in conjunction with the license agreement, quoted above. AR, Tab 11-1-1, SSEB Price Evaluation, at 4.

In general terms, the agency identified those parts of the M4/M4A1 carbine that were proprietary to Colt, and applied the 5-percent royalty adjustment only to the costs associated with those parts. Id. Specifically, the agency concluded that [DELETED] of the carbine’s parts were proprietary to Colt, or partially proprietary to Colt, and that only the portion of the price related to those parts was therefore subject to the 5-percent royalty adjustment. Id. The agency then referenced historical data from a unit price database to assign a price to each M4/M4A1 component. Using these prices, the agency calculated a royalty base expressed as a percentage of the historical price of the carbine that is proprietary to Colt. Id. at 5. For example, CLIN 0003 was assigned a proprietary percentage of 49.41 percent, meaning 49.41 percent of the carbine’s historical price for CLIN 0003 was determined to be for parts that were proprietary to Colt. Id. at 5. As a result of this calculation, the agency multiplied the prices of the other offerors by 49.41 percent, and applied the 5-percent royalty to the result. It was this number that was added to the non-proprietary portion of the other offerors’ prices to calculate a total price for each CLIN. Each CLIN, inclusive of royalty, was then added together to arrive at a total evaluated price for each offeror.

In essence, this dispute arises from a blurring of two distinct concepts--a price adjustment provision set out in a solicitation, and a royalty payment provision between the government and Colt designed to compensate Colt for the use of its proprietary technology. While the Army’s calculation may (or may not) accurately represent the amount due Colt under the license agreement, the solicitation’s price adjustment provision provided no notice to Colt--or other offerors--that the provision would be applied in this way.

In cases where a dispute exists between the parties as to the actual meaning of a particular solicitation provision, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all its provisions; to be reasonable, an interpretation of a solicitation must be consistent with such a reading. The Boeing Co., B–311344 et al., June 18, 2008, 2008 CPD ¶ 114 at 34.

The plain language of the RFP stated that “[t]he royalty rate is 5%” and that, for offerors who do not own or have licenses for the Colt technology, their proposed prices “will be evaluated by adding an amount equal to the royalty to [their] proposed prices.” RFP at 88. We agree with Colt that the only reasonable interpretation of the RFP would be to apply the 5-percent royalty to an offeror’s total evaluated price. The agency’s interpretation is simply at odds with the plain meaning of the solicitation language and, as such, is unreasonable. See Raytheon Co., B-404998, July 25, 2011, 2011 CPD ¶ 232 at 17.

The RFP here did not indicate that the agency would perform an analysis of the proprietary and non-proprietary parts, nor did it provide notice to the offerors that the agency would calculate a royalty base expressed as proprietary percentage for each CLIN. Thus, the agency departed from the RFP’s price evaluation criteria when it created its own undisclosed formula to apply the 5-percent royalty to only those portions of the M4/M4A1 carbine which it had independently determined were proprietary to Colt. As stated above, we find that the solicitation’s price evaluation clause provided no notice that the evaluation would be conducted in such a manner.

To the extent the Army contends that Colt’s protest is an untimely challenge to the terms of the solicitation, we disagree. Specifically, the agency contends that Colt was aware that the license agreement between the Army and Colt contained language that was inconsistent with Colt’s interpretation of the RFP. In effect, the agency argues that Colt’s special knowledge of the license agreement created an ambiguity that obligated the protester to challenge this solicitation prior to the time for submitting proposals. See Bid Protest Regulations, 4 C.F.R. § 21.2(a)(1) (2012).

An ambiguity exists where two or more reasonable interpretations of the terms or specifications of the solicitation are possible. DynCorp International LLC, B-289863, B-289863.2, May 13, 2002, 2002 CPD ¶ 83. A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error (e.g., where the solicitation provisions appear inconsistent on their face), while a latent ambiguity is more subtle. Ashe Facility Servs., Inc., B-292218.3, B-292218.4, Mar. 31, 2004, 2004 CPD ¶ 80 at 11. Where there is a latent ambiguity, both parties’ interpretation of the provision may be reasonable, the appropriate course of action is to clarify the requirement and afford offerors an opportunity to submit proposals based on the clarified requirement. Allied Signal, Inc., Elec. Sys., B- 275032, B-275032.2, Jan. 17, 1997, 97-1 CPD ¶ 136 at 11. Although, as noted above, we conclude that a solicitation’s price adjustment clause and the appropriate calculation of a royalty payment are two distinct concepts, if there is any ambiguity here, it was latent, rather than patent. As a result, we find that this protest is timely.

To the extent that the Army argues that Colt’s interpretation of the RFP would render ineffective a portion of the license agreement, we again disagree. Clearly Colt was aware of the terms of the license agreement--as the Army argues--and Colt was aware that the agreement stated that the royalty amount due to Colt would be based on parts or components that are produced from the proprietary portions of the carbine. However, the terms of the license agreement are not at issue here. Put differently, the RFP and license agreement need not be read in a manner that puts either in conflict.[6] See The Boeing Co., supra, at 35.

We also find no merit to the Army’s contention that Colt should have known that the agency would evaluate the other offerors’ prices in the manner employed by the SSEB. As discussed above, the agency unilaterally identified the portions of the carbine that are proprietary to Colt, used historical prices to assign a price to these portions, calculated a percentage of the price that could be considered tied to the proprietary items, and applied that percentage to the offerors’ evaluated prices. There is no dispute that the Army and Colt have yet to reach an agreement on a per-weapon value of the non-proprietary portion of the technical data package to be utilized to reduce the royalty base. See Protester’s Response to Agency’s Dismissal Request, at 6. Thus, Colt could not have known that the agency would apply the 5-percent royalty as it did. We therefore sustain the protest based upon the Army’s decision to evaluate prices in a manner different from the approach established in the solicitation.  (Colt Defense, LLC, B-406696, Jul 24, 2012)  (pdf)


Rocamar contends that requiring its wall system to undergo a second fire/burn test, after it began dismantling its wall system, was unfair and improper. Rocamar argues that the second fire/burn test on the rear non-threat side of the wall system was not contemplated by the solicitation’s test provisions. Rocamar also notes that none of the other offerors’ wall systems were required to pass a second burn test on the non-threat side of their wall systems after partial demolition. Email from DOS (May 7, 2012).

Our Office will review an allegedly improper technical evaluation of product samples to determine whether the evaluation was fair, reasonable, and consistent with the evaluation criteria. We will not make an independent determination of the merits of an offeror’s proposal; rather, we will review the evaluation record, including the results of any test demonstration, to ensure that the agency’s technical judgment has a rational basis and is consistent with the stated evaluation criteria. Optical Sys. Tech, Inc., B-296516.2, B-296516.3, Mar. 17, 2006, 2006 CPD ¶ 63 at 5. Our Office affords particular deference to the technical expertise of agency personnel regarding judgments that involve matters of human life and safety and the conduct of qualification testing is an area where contracting agencies have broad discretion so long as their action is reasonable and does not prejudice potential offerors by, for example, treating them unequally. See Science Applications Int’l Corp., B-405612 et al., Dec. 5, 2011, 2012 CPD ¶ 8 at 7; Chemonics Indus., Inc., B-260284, Apr. 19, 1995, 95-1 CPD ¶ 206 at 4. As discussed below, we cannot conclude that DOS fairly or reasonably conducted the second fire/burn test of Rocamar’s proposed system.

Our review of the video tape of the testing process confirms that the second fire/burn test was conducted by the DOS testing official, after Rocamar began to dismantle the components of its wall system. See VT at 27:47-36-34. Indeed, the protester notes that the video shows that prior to the unannounced second fire/burn test, the mesh was cut by bolt cutters approximately 210 times, had materials removed from the system with shovels, and the containment material cut with a razor. See Protester’s Supp. Comments (May 8, 2012) at 5-6; Rocamar President Affidavit (May 15, 2012) at 6.

As noted, the agency argues that such action was justified because the testing official observed that Rocamar’s wall system was constructed with a different material on the rear wall. See DOS Reply Comments (May 1, 2012) at 2. However, there is nothing in the RFP that would reasonably suggest that testing would be performed on anything other than the fully assembled system. See RFP, amend. No. 0009, attach. 8, § 2.1.2. Nor was any other offeror subjected to a similar test of its system.

In a sworn statement, Rocamar’s president, who is a licensed engineer, attributes the failure of its wall system to pass the DOS’s second burn test to the loss of the wall system’s compaction resulting from partially dismantling the wall system. He also states that the demolition directly compromised the structural integrity of its system and caused the wall system to lose its compaction, which was a key component of the design of its system. He explains that the pre-test demolition allowed excess oxygen into Rocamar’s wall system, which caused the fill inside the protester’s system to move outside the structure, and for Rocamar’s system to fail the test. Affidavit of Rocamar’s President (May 15, 2012) at 6-7. The agency has not refuted the protester’s engineering analysis of the design of its system and what would happen if there was a loss of compaction in the system. Based on this record, we find that DOS’s second fire/burn test of Rocomar’s wall system was neither fair nor reasonable, and sustain the protest on this basis.

We recommend that the agency review its test results to determine whether Rocamar’s system should be considered acceptable. The agency should also review the test results of the other offerors’ systems to determine whether further testing is required to determine their acceptability. In the event the agency determines that Rocamar’s system requires further testing, we recommend that Rocamar be provided an opportunity to provide its system for testing and that it be tested in accordance with the RFP and consistent with the procedures used in testing the other offerors’ systems. We also recommend that the protester be reimbursed for the costs of filing and pursuing its protest, including reasonable attorneys' fees. 4 C.F.R. § 21.8(d)(1) (2012). The protester should submit its certified claim for such costs, detailing the time expended and costs incurred, directly with the agency within 60 days of receiving this decision. 4 C.F.R. § 21.8(f)(1).  (Rocamar Engineering Services, Inc., B-406514, Jun 20, 2012)  (pdf)


Key Personnel Experience Evaluation

Y&K protests that the Army unreasonably found that the awardee’s proposal satisfied the RFP’s minimum requirements for key personnel experience at a TJC accredited hospital. Protest at 7-15; Protester’s Comments at 3-5. Specifically, the protester contends that the awardee’s two proposed area managers do not meet the requirement for 4 continuous years of experience working at a TJC accredited hospital. Rather, the protester asserts that the proposed managers only have experience at ambulatory facilities, that is, outpatient clinics. Protester’s 1st Supp. Comments at 3-5. Moreover, the protester notes that, although identified ambulatory clinics had at one time been accredited by TJC, the TJC accreditation standards for ambulatory care clinics are different than those for hospitals. Protester’s 2nd Supp. Comments at 2.

Agencies are required to evaluate proposals based solely on the factors identified in the solicitation, and must adequately document the bases for their evaluation conclusions. Intercon Assocs., Inc., B-298282, B-298282.2, Aug. 10, 2006, 2006 CPD ¶ 121 at 5. While agencies properly may apply evaluation considerations that are not expressly outlined in the RFP, where those considerations are reasonably and logically encompassed within the stated evaluation criteria, there must be a clear nexus between the stated criteria and the unstated considerations. Global Analytic Info. Tech. Servs., Inc., B-298840.2, Feb. 6, 2007, 2007 CPD ¶ 57 at 4. Although 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. Sonetronics, Inc., B-289459.2, Mar. 18, 2002, 2002 CPD ¶ 48 at 2, 3.

SEM’s proposal provides resumes for two individuals that were proposed for its area managers. The first shows experience at the Moody Air Force Base (AFB) Medical Treatment Facility (MTF), Georgia, for 13 years from 1998. The second shows experience at the Cannon AFB MTF, New Mexico, for 3 years from 2008. See SEM’s Proposal, Key Personnel Resumes, at 33, 35. The Army contends that this shows that SEM’s proposed area managers satisfied the key personnel experience requirements, although the agency acknowledges that the Moody and Cannon AFB MTFs are not currently TJC accredited. Supp. AR at 2. The Army states, however, that the Moody AFB MTF was accredited from 1998 to 2005, and that the Cannon AFB MTF was accredited from 1998-2006.[8] See Supp. AR at 2-3; encl. 1, TJC Accreditations, Cannon AFB, Moody AFB.

As discussed above, the RFP required offerors to propose area managers/foremen who had a minimum of 4 continuous years of TJC experience working at a TJC accredited hospital. RFP amend. 1 at 5-6; RFP at 81-83. Offerors were advised that key personnel resumes would be evaluated to ensure that the offeror proposed personnel that were qualified and had actual experience working at a TJC accredited hospital and, in this regard, offerors were required to provide documentation describing the facilities at which key personnel had worked, including the facility’s bed count and square footage. See RFP at 81-83, 89-90.

Here, as the protester points out, SEM’s proposal and the resumes provided for its proposed area managers do not show that the awardee’s area managers have experience working at a TJC accredited hospital, as required by the RFP. SEM’s Proposal, Key Personnel Resumes, at 25, 33-35. Rather, the resumes plainly indicate that each worked at an Air Force MTF. The accreditation certificates for each of these facilities show that they have been accredited by TJC as Ambulatory Health Care facilities, not as hospitals. Supp. AR, encl. 1, TJC Accreditations, Cannon AFB, Moody AFB. TJC has different accreditation standards for hospitals and for ambulatory care facilities, reflecting that hospitals provide for inpatient, confined care, whereas ambulatory facilities do not. See TJC, Hospital Accreditation Standards, 2009, at 470; TJC, Standards for Ambulatory Care, at 402 (ambulatory healthcare is defined as “[a]ll types of health services provided to patients who are not confined to an institutional bed as inpatients during the time services are rendered”). Moreover, we note that SEM did not demonstrate in its proposal, as required by the RFP, that the facilities at which the proposed area managers had worked were hospitals, and did not include documentation of, among other things, the facilities’ square footage and bed count. See RFP at 81, 90.

The record also shows that, even accepting the Air Force MTF facilities as hospitals, one of the awardee’s proposed area managers would still not satisfy the RFP’s requirements for 4 years of continuous experience at a TJC accredited facility. That is, the resume for the area manager who had experience at Cannon AFB MTF, only shows 3 years of experience at this facility. In addition, the record shows that this facility was not accredited by TJC during the time he was employed there.

As a result, we conclude that the agency did not evaluate SEM’s proposed key personnel consistent with the terms of the RFP, and we sustain the protest on that basis. See, e.g., Mechanical Contractors, S.A., B-277916, Oct. 27, 1997, 97-2 CPD ¶ 121 at 4. (protest sustained where agency failed to evaluate certification relevant to RFP’s specialized experience subfactor).  (Y&K Maintenance, Inc., B-405310.6, Feb 2, 2012) (pdf)
 


FULL OPERATING CAPABILITY (FOC)

IBM asserts that the agency improperly credited Jacobs’s proposal, but not IBM’s proposal, for offering to achieve FOC sooner than required. There are two elements to this aspect of IBM’s protest. First, according to the protester, the RFP makes no mention of FOC, either in terms of what the phrase means, or in terms of when it was supposed to have been achieved. IBM therefore asserts that the agency improperly used an unstated evaluation factor. Second, IBM asserts that the agency erred in concluding that Jacobs, but not IBM, offered to achieve FOC on an accelerated basis. In this regard, IBM asserts that while the agency evaluators found that Jacobs had proposed to achieve FOC [deleted] months “ahead of schedule,” they improperly failed to credit IBM with its proposal to achieve FOC within [deleted] months of being awarded the contract.

In response, the agency maintains that it properly gave Jacobs credit for proposing to achieve FOC in an accelerated fashion. According to the agency, achieving FOC was an implicit requirement of the solicitation that was properly considered under the technical/management evaluation factor. Furthermore, asserts the agency, Jacobs in fact proposed to achieve FOC earlier than did IBM.

As a general rule, agencies are required to advise offerors of the evaluation criteria against which proposals will be evaluated. Although agencies are not required to identify each and every element encompassed within the solicitation’s evaluation scheme, unstated evaluation considerations must reasonably be subsumed within the stated considerations. Mnemonics, Inc., B-290961, Oct. 28, 2002, 2003 CPD ¶ 39 at 6. Here, the RFP neither defined FOC nor established a schedule for achieving it. Further, the stated evaluation approach in the RFP did not provide for consideration of FOC, nor was such consideration reasonably subsumed within the stated criteria.

As an initial matter, the term FOC is not defined in the solicitation. The only specific references to FOC appear in certain materials disseminated at an industry day meeting prior to issuance of the RFP, and in the agency’s evaluation and source selection materials. Specifically, the agency’s industry day briefing materials included a slide entitled “ITMO [information technology management office] Approach,” which provided as follows:

Provide the ITIL [information technology infrastructure library] expertise

--Initial Operating Capability (IOC) –1 April 2011

--Full Operating Capability (FOC) –1 April 2013.

AR, exh. 6, at 49. Among the industry day questions and answers was the following specific question and answer:

Q: Will the requirements for IOC/FOC be defined/allocated to IOC/FOC?

A: USSOCOM expects to define/achieve Initial Operating Capability (IOC) by 1 April 2011. USSOCOM expects to achieve Full Operating Capability (FOC) no later than 1 April 2013.

AR, exh. 14, at 24.

However, these specific pre-solicitation references to FOC were not reflected in the subsequently issued RFP. Specifically, there was no RFP definition of what constitutes FOC and no RFP schedule requirement for achieving FOC at a particular time. Further, there was no provision in the RFP for evaluation of FOC, nor were any of these considerations raised during discussions.

Notwithstanding the absence in the RFP of either a definition of, or schedule for, achieving FOC, the record shows that this was a prominent consideration in the agency’s evaluation of the Jacobs proposal as well as in its source selection decision. In the agency’s final technical evaluation report, the evaluators specifically note, with respect to the Jacobs proposal:

The commitment to achieve the Final Operating Capability for process maturity [deleted] months ahead of schedule will enable the Government to focus on performance and process improvements that much quicker. The offeror’s commitment and corporate investment of [deleted] on these tools will significantly enhance the ITMO’s ability to implement the ITIL management processes and increases the confidence of the offeror’s claim to reach FOC [deleted] months ahead of schedule.

AR, exh. 27, at 29. Similarly, the briefing materials presented to the agency’s source selection authority (SSA) also favorably referred to Jacobs’ evaluated ability to achieve FOC in [deleted] versus [deleted] months. AR, exh. 26, at 18. Those same briefing materials include a comparison of the Jacobs and IBM proposals, noting as a strength in favor of award to Jacobs, the agency’s conclusion that Jacobs would achieve FOC [deleted] months earlier than IBM. Id. at 41. The agency’s source selection advisory council also made specific favorable reference to Jacob’s alleged proposal to achieve FOC in an accelerated manner. AR, exh. 29, at 1.

Finally, the SSA, in his tradeoff analysis, after discussing the strengths in the Jacobs proposal (including its evaluated ability to achieve FOC [deleted] months ahead of IBM), specifically stated as follows:

The increased cost resulting from choosing Jacobs over IBM is less than [deleted] per year Average ($[deleted] Total) and represents less than [delete] percent increase in the MPC [most probable cost]. The benefit of achieving FOC ahead of schedule provided by the Jacobs proposal will have a significant impact on the management and oversight of all SITEC efforts that more than justify this increase in MPC. Based on this, I have determined that the proposal provided by Jacobs provides significantly more value and benefits to the Government than IBM.

AR, exh. 30, at 6.

The record thus shows that the evaluators and SSA acted on the assumption that there was a schedule for implementing FOC included in the RFP, and that Jacob’s evaluated advantage with respect to achieving FOC represented the principal technical discriminator between the IBM and Jacobs proposals. However, as noted, the RFP did not define or specifically refer to FOC; did not establish a schedule for achieving FOC; and did not provide for evaluation of offerors’ schedules for FOC.

For the reasons discussed above, we sustain IBM’s protest that the agency improperly applied an unstated evaluation factor. As a final matter, as noted, the agency and IBM disagree concerning what constitutes FOC and whether or not IBM proposed to achieve it by a certain point in time. We need not resolve this dispute, since our recommendation below renders these considerations immaterial. We point out, however, that this disagreement between the agency and IBM serves to underscore the absence of an established, objective definition of, and schedule for achieving, FOC in the solicitation.  (IBM Global Business Services, B-404498,B-404498.2, Feb 23, 2011)  (pdf)


APEX protests the agency’s technical evaluation, arguing that the agency did not evaluate its proposal in accordance with the RFP’s stated evaluation criteria and, in this respect, complains that the RFP did not require offerors to identify staff deployments at each installation or propose tools, supplies, and equipment. See Protest at 17; Comments at 15-17.

The Army argues that APEX’s technical proposal was found unacceptable because it did not comply with the RFP’s requirements and did not adequately address the technical acceptability factors. See AR at 10-11. In this regard, the agency asserts that the protester failed to provide adequate details for evaluation, specifically, a staffing plan, proposed supplies and equipment, or quality control procedures. See id. at 7, 9-10.

In reviewing protests challenging the evaluation of proposals, we do not conduct a new evaluation or substitute our judgment for that of the agency, but examine the record to determine whether the agency’s judgment was reasonable and in accord with the solicitation’s evaluation criteria. Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD ¶ 223 at 4. Where a protester challenges the agency’s evaluation and source selection, we will review the evaluation and award decision to determine if they were reasonable, consistent with the solicitation’s evaluation scheme, as well as procurement statutes and regulations, and adequately documented. See, e.g., Wackenhut Servs., Inc., B-400240, B-400240.2, Sept. 10, 2008, 2008 CPD ¶ 184 at 6; S4, Inc., B-299817, B-299817.2, Aug. 23, 2007, 2007 CPD ¶ 164 at 9.

Based on our review of the record here, we agree with the protester that the agency evaluated its technical proposal and rejected it as unacceptable based on unstated criteria. As set forth above, the RFP required technical proposals to describe--in no more than 15 pages--the offeror’s proposed plans, processes, procedures, and systems, and provide all supporting data and documentation. RFP at 119. No further substantive instructions were provided in this regard. More specifically, the RFP did not request that offerors identify their proposed staff deployments at each installation or the tools, supplies and equipment that would be used. Id. at 118-33. Rather, the PWS requires the contractor to submit--after award--work schedules and a list of all supplies and equipment needed to perform the requirements.[7] See PWS at 13-14, 16. Moreover, the PWS requires the contractor to coordinate cleaning schedules with the agency and, in this regard, requires the contractor to provide work schedules at least 30 calendar days prior to the month of performance. Id. at 7, 16. Under these circumstances, we do not think that an offeror would reasonably understand that it was required to propose staff deployments for each of the three medical facilities, as well as tools, supplies and equipment, particularly here where the PWS requires such details be coordinated with, or approved by, the agency after contract award.

Accordingly, we find that the agency’s determination that APEX’s proposal was unacceptable because it failed to propose staff deployments at each installation or supplies and equipment, was based on unstated evaluation criteria, and we sustain the protest. See, e.g., DRS ICAS, LLC, B-401852.4, B-401852.5, Sept. 8, 2010, 2010 CPD ¶ 261 at 10-11 (agency applied unstated evaluation criteria when it assessed a technical weakness based on protester’s failure to identify and address specific threats and technologies for future systems upgrades, and offerors would not reasonably realize that they should submit such information, where RFP only required offerors to address how the “architecture” of their proposed systems would accommodate upgrades and systems growth); RJO Enter., Inc., B-260126.2, July 20, 1995, 95-2 CPD ¶ 93 at 13-16 (agency applied unstated evaluation criteria when it downgraded protester’s proposal for failure to submit resumes for certain labor skill levels where RFP did not require resumes for every skill level and contemplated that contractor would propose staffing plans and labor mixes for future task orders).  (APEX-MBM, JV, B-405107.3, October 3, 2011)  (pdf)


Unstated Evaluation Criteria

The solicitation included three sample task orders (STO 1, STO 2, and STO 3), the responses to which were to be evaluated as follows:

The Sample Tasks are designed to test the offeror's expertise and innovative capabilities to respond to the types of situations that may be encountered in performance. . . Accordingly, the offerors will not be given an opportunity to correct or revise a sample task response.

The evaluation of each sample task will consider the following:

(1) Understanding of Problems‑‑The proposal will be evaluated to determine the extent to which the offeror demonstrates a clear understanding of all features involved in solving the problems and meeting the requirements presented by the sample task; and the extent to which uncertainties are identified and resolutions proposed.

(2) Feasibility of Approach‑‑The proposal will be evaluated to determine whether the offeror's methods and approach to meeting the sample task requirements provided the Government with a high level of confidence of successful completion. The evaluation will also consider the realism of the labor categories being proposed in the offeror's response to the sample tasks.
RFP sect. M.2.C.

DSS was rated acceptable for STO 1, unacceptable for STO 2, and good for STO 3. DSS asserts that the agency used unstated criteria in evaluating its responses to the STOs. Specifically, DSS notes that for each STO the agency compiled a list of task areas and subtasks that an offeror was required to address to receive evaluation credit. We have reviewed this assertion and find it without merit. We discuss the issue with respect to STO 2 below.

The solicitation required offerors under STO 2 (software development) to design, develop and field a single financial system to replace three current systems used by approximately 100,000 VA personnel. Offerors were required to describe their approach to how they would execute all tasks necessary for this effort, and list the labor categories required to perform each effort of the task. RFP sect. J, attach. 15,
STO 2.

As part of its evaluation of offerors' STO responses, the agency prepared a list of key focus areas and lower level focus areas that it believed an offeror would have to address to demonstrate that it understood the task and had a feasible approach to solving it. With respect to STO 2, the key focus areas and lower level focus areas were: project management (stakeholders, resources/labor categories, project schedule, and project management processes including change management, configuration management, risk management, quality assurance, communications, tools, and integrated product teams); policy understanding (compliance with government policy and standards for a technical reference model, VA Enterprise Architecture (EA), Office of the Management and Budget financial guidelines, and security policies); software solution (business process gap analysis, system architecture design, development process that takes into account system capacity requirements, and data warehouse/reporting capability); data migration (data migration planning, data requirements sessions with legacy system owners/users, data cleansing strategy, and migration process); training (training strategy and plan, developing training materials, training environment, and training delivery); testing (test planning, methods for test support, conducting tests, and providing test activities); and deployment/post go-live support (support planning, fielding strategy, help desk, and support teams). Technical Factor Ratings at 18. The agency asserts that the above considerations were related to the stated evaluation criteria and thus were properly considered.

While solicitations must inform offerors of the basis for proposal evaluation, and the evaluation must be based on the factors set forth in the solicitation, Federal Acquisition Regulation sect. 15.304, agencies are not required to specifically list every area that may be taken into account, provided such areas are reasonably related to or encompassed by the stated criteria. AIA-Todini-Lotos, B-294337, Oct. 15, 2004, 2004 CPD para. 211 at 8.

Here, the key focus and lower level focus areas that the agency considered in evaluating STO 2 were reasonably related to or encompassed by the stated criteria, and thus were not improper unstated evaluation criteria. As noted, the solicitation provided that the offeror's response to the sample task would be evaluated to determine whether the offeror understood the problem and had a feasible approach to solving it. RFP sect. M.2.C. Understanding and feasibility of approach, however, are not factors that can be evaluated on their own, without reference to the work to be accomplished. In this regard, STO 2 instructed offerors to describe how they would execute all tasks necessary for the effort. RFP sect. J, attach. 15, STO 2. It follows then, that offerors were on notice that, in evaluating understanding and feasibility of approach, the agency was going to consider the tasks it believed were necessary to perform the sample task. DSS has furnished no basis for us to conclude that such areas considered by the agency as project management, policy understanding, testing and training, and the elements that comprise these broader areas such as stakeholder involvement and compliance with government policies, were not reasonably related to performing the overall STO 2.  (DSS Healthcare Solutions, LLC, B-403713.3, June 22, 2011)  (pdf)


MEP takes issue with multiple aspects of the agency's evaluation, arguing, among other things, that the agency failed to evaluate vendors' quotations under the resumes factor as contemplated by the RFQ. We sustain MEP's protest on this issue.

When an agency conducts a formal competition under the FSS program for award of a task order contract, we will review the agency's actions to ensure that the evaluation was reasonable and consistent with the terms of the solicitation. The MIL Corp., B-297508, B-297508.2, Jan. 26, 2006, 2006 CPD para. 34 at 4.

MEP argues that the agency did not evaluate vendors' quotations under the resumes factor as provided for by the terms of the RFQ. As noted above, the solicitation required vendors to submit resumes for several key personnel and provided for evaluation of each resume against the SOW requirements. In addition, the RFQ provided that each resume would receive its own rating, that resumes failing to meet minimum requirements would be rated as unacceptable, and that the agency would determine an overall rating under the resume factor by averaging the rating of each panel member for each resume. RFQ, at 62.

The agency concedes that it did not evaluate the resumes in the manner described by the RFQ. Contracting Officer's (CO) Statement at 6. Instead, the agency explains that due to an "administrative oversight," the evaluators were given an incorrect evaluation standard for the resumes factor. That is, rather than being advised of the above standard, the evaluators were instructed simply to verify that the vendors had furnished resumes for the key personnel positions. Applying this instruction, the evaluators essentially reviewed the resumes factor on a pass/fail basis--i.e., they merely determined whether vendors had provided resumes for their key personnel and did not further review the resumes to determine any strengths or weaknesses for the purpose of determining a rating under the resumes factor. Since both MEP and SAIC submitted the required resumes, they both simply received an [deleted] rating. Id. The fact that the evaluators did not further evaluate vendors' quotations with respect to the resumes factor is further confirmed by the fact each evaluator worksheet for this factor is completely blank, with no documentation of any evaluation or assignment of relative strengths or weaknesses. See AR, Tab 17, MEP worksheets, at 4, 8, 12; Tab 18, SAIC worksheets, at 4, 18, 12.

Notwithstanding this clear deviation from the evaluation criteria established by the RFQ, the agency attempts to excuse its admitted error by suggesting that it effectively considered the qualifications of the vendors' key personnel under the management plan factor, which provided for consideration of the relevant experience of the proposed management team in relation to the SOW.

The agency's analysis conflates two evaluation factors that the RFQ established as separate and distinct from one another, and, in so doing, undermines the significance of the resumes factor. By considering the resumes factor as subsumed under the management plan factor, rather than assigning it the separate adjectival rating and weight provided for in the RFQ, the agency conducted its evaluation in a manner that was contrary to the evaluation scheme expressly established by the RFQ.  (Mission Essential Personnel, LLC, B-404218.2; B-404218.3, June 14, 2011)  (pdf)


Wood Cuts complains that the agency's assessment of its proposal under the cabin design and materials evaluation factor was unreasonable because the agency did not credit Wood Cuts for its offer to use [environmentally preferable products] EPPs in its alternative design. In this regard, Wood Cuts argues that the agency was required by statute and regulation to apply a preference for "young-growth" timber over the use of "old-growth" timber, such as Alaskan Yellow cedar. See Comments at 3-6. In support of its arguments, Wood Cuts cites to the Multiple-Use Sustained-Yield Act of 1960 (MUSYA), Pub. L. No. 86‑517, 74 Stat. 215, 16 U.S.C. sections 528-531 (2006), and FAR subpart 23.7, Contracting for Environmentally Preferable Products and Services.

In reviewing protests against allegedly improper evaluations, our Office examines the record to determine whether the agency's evaluation was, in fact, in accord with the stated evaluation factors. Computer Prods., Inc., B-284702, May 24, 2000, 2000 CPD para. 95 at 4‑5; Computer Assocs. Int'l, Inc., B‑292077.3 et al., Jan. 22, 2004, 2004 CPD para. 163 at 6.

Here, the record shows that the agency evaluated Wood Cuts' and Ketchikan's proposals in accordance with the evaluation criteria identified in the solicitation. Although the protester contends that it should have received enhanced credit for offering (in its alternative design) to use EPPs, the RFP did not provide that offerors would receive enhanced credit for using EPPs.[2] In fact, offerors were specifically informed (as Wood Cuts itself recognized in its basic proposal) that the agency preferred the use of Alaska Yellow Cedar. Wood Cuts' objections are grounded upon its belief that statutes and regulations, such as MUSYA and FAR subpart 23.7, require the agency to give an evaluation preference for the use of EPPs, even where the solicitation's evaluation criteria do not provide for such a preference. There is no merit to this argument. As an initial matter, there is no provision in the cited statute or regulation that requires the use of an evaluation preference in any particular procurement. In any event, it is a fundamental principle of federal procurement law that a contracting agency must evaluate all offerors' proposals against the solicitation's stated evaluation criteria. See, e.g., Source Diversified, Inc., B‑403437.2, Dec. 16, 2010, 2010 CPD para. 297 at 6.  (Wood Cuts, B-403960.3, May 19, 2011)  (pdf)


Retail Clean complains that the Army evaluated unstated evaluation criteria and improperly awarded the contract to Farrington. Retail Clean asserts that the agency gave Farrington credit for providing additional services beyond what was required by the solicitation, that is, stripping and waxing floors more frequently than was required by the solicitation, and shampooing carpets when only vacuuming was required. Protest at 9.

We review an agency's evaluation to ensure that it is fair and reasonable, and consistent with the evaluation criteria stated in the solicitation and with applicable procurement statutes and regulations. Godwin Corp., B-290291, June 17, 2002, 2002 CPD para. 103 at 3.

As noted above, the awardee proposed to strip and wax the floors four times per year, and shampoo the carpet twice a year. AR, Tab 6, Farrington's Quotation, at 24. The protester offered to strip and wax the floors only once a year, and scrub the floor and reapply the wax one other time during the year. AR, Tab 5, Retail Clean's Final Quotation, at 103. The protester did not offer to shampoo carpeted areas.

Although the protester is correct that the solicitation did not identify desired frequencies for performing the required tasks, the solicitation nonetheless contemplated that the frequency of performing tasks would be evaluated. As stated above, the RFQ required vendors to provide the frequency for performance of each task as a part of the vendor's quality control plan, RFQ at 49, and vendors were specifically advised that it was the vendor's responsibility to provide a "frequency chart" identifying the frequency with which tasks would be performed. RFQ amend. 1 at 3 (Question No. 11). In addition, the RFQ specifically required shampooing of the carpeted areas. RFP at 18. Based on this RFQ, we find reasonable the agency's consideration of the frequency of performance, as well as whether carpets would be shampooed.  (Retail Clean Management Systems, B-403651; B-403651.2, November 18, 2010)  (pdf)


PMO-JV filed the current protest with our Office on July 1 challenging its elimination from the competition. PMO-JV argues that FTA failed to follow the solicitation criteria for evaluation because the RFP did not require the submission of cost or pricing data, and yet, PMO-JV was evaluated against, and excluded for, not meeting the requirements of FAR sect. 15.408, Table 15-2, which only apply when cost or pricing data are required. See RFP at 88. We agree.

The RFP advised that FTA would evaluate and assess offerors' cost proposals for cost reasonableness and realism, and to determine that all items proposed have been included in accordance with FAR Subpart 15.4-Contract Pricing. RFP at 98. The RFP also expressly advised that because the contracting officer expected adequate price competition, "this action is therefore exempt from the requirement for submission of cost or pricing data."[6] RFP at 88. Instead of cost or pricing data, the RFP requested information other than cost and pricing data and required, "all Offerors (prime and subcontractors) to submit a budget summary for the entire contract period of performance."[7] Id. The RFP informed offerors that the requested information was necessary to determine the adequacy of the offeror's proposal, but noted that such information was "not considered cost or pricing data, and will not require certification in accordance with FAR [sect.] 15.406-2." RFP at 89. The RFP also stated if the contracting officer concluded there was insufficient information available to determine price reasonableness and none of the exceptions described in FAR sect. 15.403‑1 applies, then cost or pricing data shall be obtained. Id.

In accordance with the terms of the solicitation, PMO-JV did not submit cost or pricing data with its cost proposal, nor did it submit data in the format specified at FAR sect. 15.408, Table 15-2. PMO-JV instead submitted other than cost or pricing data on Attachment J‑6, Contract Pricing Summary, with supporting back-up material, and a budget summary as requested by the RFP.

However, the FTA contracting officer limited DCAA's review of PMO's cost proposal to verifying whether the data was presented as required by FAR sect. 15.408, Table 15‑2. This was improper because the use of these requirements are only appropriate where cost or pricing data is required by the solicitation. We also note that this table was neither referenced nor incorporated into the RFP, and there is nothing in the RFP to put offerors on notice that the agency would evaluate cost proposals against FAR 15.408, Table 15-2; to the contrary, the solicitation expressly stated that cost or pricing data was not required.

As indicated, DCAA's constrained adequacy review found various inadequacies in PMO's cost proposal because supporting data required by FAR sect. 15.408, Table 15‑2 was not included. For example, DCAA reported that PMO-JV's Contract Pricing Summary Sheet (Attachment J-6) failed to include a price analyses of all subcontractor proposals and a cost analyses for subcontract proposals exceeding the threshold for cost or pricing data ($650,000), as required by FAR 15.408, Table 15‑2, II.A.(2). However, the RFP's cost proposal instructions did not indicate that PMO-JV had to conduct and submit such analyses.

An agency may not induce offerors to prepare and submit proposals based on one premise, then make source selection decisions based on another. DynCorp, B‑245289, B-245289.2, Dec. 23, 1991, 91-2 CPD para. 575 at 6; Hattal & Assocs., B-243357, B‑243357.2, July 25, 1991, 91-2 CPD para. 90 at 7. The problems found by DCAA were based upon FAR requirements that are only applicable when cost or pricing data is required. Because the RFP expressly provided that cost or pricing data was not required, and because the RFP did not otherwise indicate that the data should be presented in this format, the agency's evaluation of PMO-JV's cost proposal was unreasonable.

Moreover, the record, which includes numerous audits of the cost proposals of the other offerors (including the 18 awardees), shows that none of these cost proposals were evaluated for adequacy based on the instructions contained in FAR sect. 15.408, Table 15-2. It is fundamental that the contracting agency must treat all offerors equally, and therefore it must evaluate offers evenhandedly against common requirements. Tidewater Homes Realty, Inc., B-274689, Dec. 26, 1996, 96-2 CPD para. 241 at 3.

Furthermore, the agency's prohibition on DCAA communications with PMO-JV concerning the adequacy of its submitted cost data appears inconsistent not only with DCAA practice, but with FAR sect. 15.404-2(d), which states:

The [administrative contracting officer] or the auditor, as appropriate, shall notify the contracting officer immediately if the data provided for review is so deficient as to preclude review or audit. . . . The contracting officer immediately shall take appropriate action to obtain the required data. Should the offeror/contractor again refuse to provide adequate data, or provide access to necessary data, the contracting officer shall withhold the award . . .

In this case, we think that questions about the adequacy of the submitted cost data should have been a subject of dialogue between the agency (or DCAA) and PMO-JV before that firm's proposal was rejected for this reason, particularly given that the previous awards under this solicitation were made over a year ago.

The protest is sustained.  (PMO Partnership Joint Venture, B-403214; B-403214.2, October 12, 2010) (pdf)


Wackenhut challenges the agency's evaluation of proposals under the management approach factor and argues that the source selection decision was not reasonable. Specifically, Wackenhut complains that the agency's evaluation of Coastal's approach for providing relief to guard workers was inconsistent with the RFP, and that offerors' proposals were evaluated disparately under the management approach factor.

An agency is required to evaluate proposals in a manner that is consistent with the terms of the solicitation, and to evaluate offers on a common basis. Contingency Mgmt. Group, LLC; IAP Worldwide Servs., Inc., B-309752 et al., Oct. 5, 2007, 2008 CPD para. 83 at 10. Where the agency's evaluation does not adhere to the solicitation's evaluation criteria, or where proposals are evaluated disparately, our Office will sustain the protest. Id. at 10-11. Our review of the record confirms that the agency failed to properly evaluate proposals here.

Despite the clear direction provided by the agency in answers to questions from potential offerors about not using supervisors for relief, Coastal's proposal indicated that the firm would use on-site supervisors to provide relief for guard workers at outlying sites at times when the supervisors are not performing supervisory duties. AR, Tab 11, Coastal's Technical Proposal, at 13. As noted above, the agency credited this as a benefit to the government that not only met, but exceeded the requirements of the RFP. AR, Tab 13, Technical Executive Summary, at 66-67. The agency specifically stated, with regard to Coastal's approach, that "relief will be provided in accordance with the contract's requirements," and it cited Coastal's approach as an "innovation" that contributed to the proposal's highly acceptable rating. Id.

The agency contends that it was reasonable to credit this aspect of the proposal because, although the RFP prohibited supervisors from providing relief, Coastal's use of supervisors here was limited to time when these personnel were acting in a non-supervisory capacity, and were not being billed at supervisory rates. Supplemental AR at 9. In the agency's view:

since the person who will be providing relief will be doing so in a non‑supervisory capacity and will not be charging the Government at supervisory rates, this does not conflict with the terms of the solicitation and there is no merit to [Wackenhut's] allegation.

Id.

We are unpersuaded by this argument. The solicitation was very clear that the agency did not want supervisors to provide relief. Wackenhut structured its proposal to provide relief to guard workers without relying on supervisors to provide relief, and the agency specifically noted that Wackenhut "understand[s] the [RFP] requirement that supervisors do not provide relief ('replacements')." AR, Tab 13, Technical Executive Summary, at 25. The agency took the opposite approach with regard to its evaluation of Coastal's proposal when it ignored this requirement and found that Coastal's plan to have supervisors provide relief was "innovat[ive]," "creative," and "exceeds the requirements" of the RFP. Id. at 66‑67.

Based on the record here, we find that the agency waived for Coastal the requirement that supervisors cannot provide relief, and that Wackenhut was prejudiced by this action. We sustain the protest on this basis.

It also appears from the record that the agency may have evaluated proposals disparately in other ways under the management approach factor. In this regard, Wackenhut's proposal contained some of the same features that the agency viewed as advantageous in Coastal's proposal, but the record does not indicate that Wackenhut received the same favorable consideration in the evaluation. For example, as noted above, the agency cited as support for Coastal's highly acceptable rating that Coastal had its own training academy and a transition plan that included hiring the incumbent workforce. AR, Tab 16, Post Negotiation Memorandum, at 17. However, the record shows that Wackenhut also had its own training academy in the District of Columbia area, and its transition plan already consisted of at least a portion of the incumbent workforce because Wackenhut is the incumbent on the DEA headquarters contract. The record does not explain why Wackenhut was found only to have met the requirements of the RFP for these features, yet Coastal was found to have exceeded the requirements. AR, Tab 13, Technical Executive Summary, at 25, 66-67; Tab 16, Post Negotiation Memorandum, at 17.  (Wackenhut Services, Inc., B-402550.2, June 7, 2010)  (pdf)


Trailblazer challenges the agency's technical and cost evaluations in two principal respects. First, TrailBlazer argues that CMS improperly credited Highmark with staffing reductions based on the agency's belief that Highmark would be able to reduce the suspense rate through its use of [DELETED]. This was improper, according to TrailBlazer, because the RFP established the suspense rate as a mandatory workload assumption and CMS was therefore required to evaluate Highmark's technical and cost proposals based on its ability to perform at the RFP's 25 percent suspense rate, not some lower value.

(Sentence deleted).

Suspense Rate


Where a protest challenges an agency's evaluation, we will review the evaluation record to determine whether the agency's judgments were reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. W. Gohman Constr. Co., B-401877, Dec. 2, 2009, 2010 CPD para. 11 at 3. Further, when an agency evaluates a proposal for the award of a cost-reimbursement contract, as in this case, the agency must perform a cost realism analysis to determine the extent to which an offeror's proposed costs are realistic for the work to be performed. FAR sect. 15.404-1(d)(1). An offeror's proposed estimated costs are not dispositive because, regardless of the costs proposed, the government is bound to pay the contractor its actual and allowable costs. FAR sections 15.305(a)(1); 15.404-1(d); Palmetto GBA, LLC, B-298962, B-298962.2, Jan. 16, 2007, 2007 CPD para. 25 at 7. We review an agency's evaluation in this area only to see that the agency's cost realism evaluation was reasonably based and not arbitrary. Hanford Envtl. Health Found., B-292858.2, B-292858.5, Apr. 7, 2004, 2004 CPD para. 164 at 9.

TrailBlazer asserts, and the record reflects that Highmark's lower evaluated cost, as compared to the cost of TrailBlazer's proposal, was driven, in part, by Highmark's [DELETED] to introduce greater automation with respect to claims processing. One aspect [DELETED], as explained by Highmark's proposal, is its ability to reduce the rate at which claims are suspended--the suspense rate. In challenging CMS's evaluation of Highmark's proposal, TrailBlazer does not argue that the staffing reductions attributed to TrailBlazer's use of increased automation are not possible. See Protester's Comments on Supp. Report, at 14. Rather, TrailBlazer argues that accepting Highmark's reduced staffing based on the ability [DELETED] to reduce the suspense rate was improper since the RFP clearly required offerors to assume a 25 percent suspense rate. Id.

TrailBlazer contends, and the record confirms, that Highmark used the 25 percent suspense rate workload assumption set forth in the RFP as the basis for its proposed staffing levels. As noted above, in responding to the concern raised by CMS during discussions that its claims processing staffing was too low, Highmark expressly reaffirmed its use of [DELETED] FTEs for the claims processing work and that its staffing was predicated on performing this function at the assumed 25 percent suspense rate set forth in the RFP. See AR, Tab 25, Highmark Discussion Response, at 1. TrailBlazer further argues--and the record appears to support its contention--that CMS did not believe [DELETED] FTEs would be adequate. See AR, Tab 21, TEP Report for Business Proposals, at 1. Rather, CMS appears to have only accepted Highmark's staffing levels due to Highmarks' use of [DELETED], which, as explained by Highmark in its proposal, has the ability to reduce the suspense rate; and, as determined by CMS, has the ability to reduce staffing levels by approximately one half. Id.

Thus, the record supports one aspect of TrailBlazer's thesis, that CMS credited TrailBlazer with reduced staffing and cost resulting from its use of [DELETED], and its resulting ability to achieve a reduction in the suspense rate. What is not supported, however, is TrailBlazer's premise that the agency's evaluation considerations in this regard were contrary to the terms of the RFP. While TrailBlazer correctly notes that the RFP required all offerors to use the workload assumptions in preparing their proposals, there is nothing in the RFP which precluded CMS from considering each offeror's unique technical approach or proposed innovations, and their impact on the workload assumptions (in this case the suspense rate), and then accounting for such impacts as part of its evaluation. To the contrary, as noted above, the RFP expressly provided that CMS would evaluate the extent to which offerors proposed "innovations" and "efficiencies" with respect to the various requirements to include claims processing. RFP at 93. Moreover, pursuant to FAR sect. 15.404-1(d)(1), a cost realism analysis, which CMS was required to perform, provides for independently reviewing whether specific cost elements proposed by an offeror are realistic for the work to be performed considering the unique methods of performance described in the offeror's proposal. Thus, having identified Highmark's use of [DELETED] as an innovative, and viable, technical approach, it was appropriate for CMS to consider the impact of this approach on Highmark's staffing levels and thereby its overall cost to the government.

TrailBlazer alternatively argues that even if it was appropriate for CMS to consider Highmark's use of [DELETED] to reduce its staffing, CMS failed to perform any meaningful analysis of Highmark's ability to achieve the staffing reductions with which it credited Highmark's proposal. In support of its position, TrailBlazer relies on our decision in National City Bank of Indiana, B-287608.3, Aug. 7, 2002, 2002 CPD para. 190. The record, however, reflects that, unlike the agency's cost realism evaluation in National City Bank, which consisted entirely of conclusory statements regarding the viability of proposed cost reductions, CMS expressly considered Highmark's [DELETED], analyzed the degree to which it would reduce staffing, and provided a contemporaneous explanation for its conclusions in this regard. As noted above, the TEP determined that [DELETED] had the potential to reduce staffing by half [DELETED]. AR, Tab 20, Addendum to Technical Evaluation Report, at 1; AR, Tab 22, Addendum to TEB Report for Business Proposals, at 1. Since the Section 1011 program is essentially a replicate of the Medicare Part A and B processing system, CMS reasonably had little doubt that similar staffing reductions could be achieved. Moreover, the evaluation record identifies several of the specific features of [DELETED], which the agency believes would be useful in reducing staffing, including, [DELETED]. Id. Based on this record, we have no basis to conclude that the agency's consideration of Highmark's staffing, in conjunction with its use of [DELETED], was improper or otherwise unreasonable.  (TrailBlazer Health Enterprises, LLC, B-402751; B-402751.2, July 20, 2010)  (pdf)


With respect to its evaluation, T-C challenges each of the deficiencies assessed against its proposal under the technical evaluation factor--the most heavily-weighted factor. We agree with the protester that the evaluation of the technical factor was not based on the criteria stated in the RFP, and that the criteria in the RFP were not applied fairly to the information in the protester's proposal. We will discuss the evaluation of the protester's proposal under technical subfactor 1 to provide an example of the flaws found throughout the evaluation of the technical factor.

First, T-C argues that it was unreasonable for the VA to assess both a strength and a deficiency for T-C's proposal on the same issue--i.e., whether its transcriptionists would have experience transcribing for physicians who were not native English speakers. One of the strengths identified for T-C's proposal explained that "[a]ll transcriptionists must have experience with ESL (English as second language) physicians." AR, Tab 14, Evaluation of T-C, at 1. At the same time, one of the deficiencies identified for T-C's proposal under this same subfactor was that the proposal "[d]oes not mention skill with ESL (English as second language) physicians." There is nothing in the contemporaneous record reconciling the apparent contradiction in these assessments. When asked by our Office to address the issue directly, the VA acknowledged that the evaluation was erroneous on this point. We agree.

Second, T-C argues that it was unreasonably assigned a deficiency under technical subfactor 1 for failing to provide a resume for each transcriptionist, because the RFP did not require proposals to include that information. Protester's Comments at 3, 5. Our Office asked the VA to identify where the RFP required this information. Fax from GAO to Parties, Aug 3, 2009, at 2 (Question 5). In its supplemental report, the VA responded that "[t]he factor referenced paragraph 10 of the PWS which indicates that resumes will be provided." Thus, the VA argued that it was proper for the VA to evaluate T-C's proposal as "satisfactory," and eTrans's proposal as "marginal" because those firms failed to provide resumes, and to evaluate K&R's proposal as "excellent" because it did provide resumes. Supp. AR at 2 (Answer 5). The RFP, as quoted above, does not support the VA's argument on this point.

The RFP instructed offerors to include in their proposals information to "indicate their ability to provide personnel that meet the requirements of paragraph 10 of the PWS." RFP at 61. In turn, paragraph 10 of the PWS described the certification and experience required. It does not require that proposals include resumes. The only reference to resumes is in the statement in the PWS that "Curriculum vitae of employees will be provided to each of the facilities." RFP at 16. The language in this sentence, however, plainly describes an event that will occur in the future ("will be"), and specifically after award of particular locations ("to each of the facilities"). Therefore, we think that this sentence described a performance requirement, and not information that an offeror needed to provide in its proposal. Since the RFP did not require offerors to submit a resume for each employee, the downgrading of the protester's proposal on this basis was improper.

In conclusion, although the examples above are taken from subfactor 1, they demonstrate the flawed evaluation approach taken by the VA evaluators with respect to the technical factor generally. From our review of the record, we conclude that the flawed evaluation also affected the other three subfactors.  (T-C Transcription, Inc., B-401470, September 16, 2009) (pdf)
 


Master Lock challenges the award of 11 of the 13 remaining lock types to Evergreen during the reevaluation. The protester argues that the agency improperly considered the anticipated “demand” for each lock type in its price/technical tradeoff. The protester also argues, in the alternative, that if demand was a proper evaluation criterion, the agency’s selection decision elevated its importance in a manner inconsistent with the solicitation’s stated evaluation scheme. We disagree with both of the protester’s arguments.

Use of “Demand” as an Evaluation Criterion

First, Master Lock argues that DLA’s consideration of anticipated demand for each lock type constituted an undisclosed evaluation criterion. For the reasons discussed below, we disagree.

Agencies are required to evaluate proposals based solely on the factors identified in the solicitation, and must adequately document the bases for their evaluation conclusions. Intercon Assocs., Inc., B-298282, B-298282.2, Aug. 10, 2006, 2006 CPD para. 121 at 5. While agencies properly may apply evaluation considerations that are not expressly outlined in the RFP where those considerations are reasonably and logically encompassed within the stated evaluation criteria, there must be a clear nexus between the stated criteria and the unstated consideration. Global Analytic Info. Tech. Servs., Inc., B--298840.2, Feb. 6, 2007, 2007 CPD para. 57 at 4.

As discussed above, DLA’s selection decision considered the anticipated volume of orders for each lock type, as identified in the RFP. Specifically, the selection decision considered whether offerors’ past performance demonstrated that they could meet the “demand” for the higher-volume lock types. AR, Tab 10, Revised SSAD, at 5. Master Lock argues that the solicitation did not state that DLA would consider “demand” as an evaluation factor, and that the agency had therefore departed from the evaluation scheme.

The RFP stated that the agency would consider the overall relevance of offerors’ past performance as follows: “Past performance information will be used in the determination of the best value to the Government. This evaluation process will focus on information that demonstrates quality of performance relative to the type, size and complexity of this acquisition.” RFP at 66. The RFP also stated that the delivery subfactor of the past performance factor would evaluate offerors’ performance record to assess their ability to deliver the required volumes of locks. Specifically, the delivery subfactor stated as follows:

The Government will evaluate the offeror’s Delivery. We will review the offeror’s record of on-time performance. Accordingly, the offeror’s past performance record will be evaluated to ensure its ability to handle the volume of sales similar to the solicitation’s estimated requirements with on-time delivery and to assess its experience in complex contracting with an emphasis on Stock Delivery.
Id. at 67.

With regard to the two lock types for which the RFP anticipated the highest demand, DLA concluded that Master Lock’s past performance record provided the agency a high degree of confidence that the offeror would be able to meet the requirements for providing the high-demand lock types. Id. at 6. With regard to the remaining 11 lock types, the agency concluded that although Evergreen’s past performance record demonstrated a “slightly higher performance risk” because the offeror did not have as much experience with high-demand item delivery as compared to Master Lock, this risk was acceptable because Evergreen would be providing the lower-demand lock types. Id. at 6-7.

We think the solicitation advised offerors that their past performance records would be evaluated based on relevance, thereby making the offeror’s performance of higher and lower-demand requirements relevant. We further think that the agency’s consideration of the demand for each lock type and the offerors’ delivery records was reasonably and logically encompassed within the express terms of the delivery subfactor. On this record we find no merit to the protester’s argument that the agency used an undisclosed evaluation criterion.

Weight of “Delivery” Subfactor in the Selection Decision

Next, Master Lock argues that even if DLA properly considered demand for each lock type in its evaluation of offerors’ past performance, the agency placed an improper emphasis on this criterion in a way that was inconsistent with the stated evaluation scheme. For the reasons discussed below, we disagree.

As discussed above, the RFP stated that past performance was the most important non-price evaluation factor. The RFP also stated that the three past performance subfactors of delivery, business relations/customer satisfaction, and quality were of equal importance. Master Lock argues that DLA improperly treated delivery as more important than the other past performance subfactors, and thereby departed from the solicitation’s stated evaluation scheme. Specifically, the protester contends that although the selection decision discusses the offerors’ delivery records, the agency did not address the offerors’ evaluations under the other two subfactors. We find these arguments without merit.

The record does not show, as the protester argues, that DLA considered only the delivery subfactor, and ignored the business relations/customer satisfaction and quality subfactors. Instead, the selection decision discussed the degree to which the ratings under all three subfactors demonstrated confidence in the offeror’s ability to meet the solicitation requirements. Id. With regard to each offeror, the agency also addressed the relevance of each offerors’ past performance, particularly with regard to each offeror’s ability to deliver the volume of locks required under the contract. AR, Tab 10, Revised SSAD, at 3.

As discussed above, we think the agency’s consideration of “demand” was reasonably related to both the overall evaluation of the relevance of the offerors’ past performance, and to the specific subfactor of delivery. We do not agree with the protester that because more words were devoted to the discussion of the delivery subfactor than to the specific ratings under the business relations/customer satisfaction and quality subfactors, the agency departed from the evaluation scheme. In this regard, the selection decision shows that DLA considered the overall past performance evaluation in a tradeoff between the price and non-price evaluation factors. The record further shows that for each lock type, the agency weighed Evergreen’s lower price against Master Lock’s higher ratings under the past performance, socio-economic considerations and JWOD considerations factors. In light of Master Lock’s higher prices, the agency determined that the protester’s advantage under the non-price evaluation factors merited award to the protester only for those lock types where the high volume of orders decreased the confidence in Evergreen’s ability to perform.

In sum, we think the record shows that DLA considered all of the evaluation factors and made its selection decision in a manner consistent with the solicitation.  (Master Lock Company, LLC, B-309982.3, December 10, 2008) (pdf)


Master Lock argues that the selection decision was flawed for two reasons: (1) the selection decision relied on a mechanical comparison of offerors’ proposed prices, and (2) the selection decision excluded consideration of Evergreen’s evaluation under the socio-economic and JWOD considerations evaluation factors. We disagree with the first argument, but agree with the second one.

First, the protester argues that the selection decision was based solely on a mechanical comparison of the offerors’ proposed price, rather than a tradeoff between price and non-price factors, as required by the solicitation. Specifically, the protester contends that the selection decision was made based on an arbitrary price evaluation that “split the difference” between the offerors’ prices.

Where a price/technical tradeoff is made, the selection decision must be documented, and the documentation must include the rationale for any tradeoffs made, including the benefits associated with additional costs. Federal Acquisition Regulation (FAR) sect. 15.308. It is improper for an agency to rely on a purely mathematical price/technical tradeoff methodology. Opti-Lite Optical, B-281693, Mar. 22, 1999, 99-1 CPD para. 61 at 4-5.

Here, the record shows that the SSA used the average of the offerors’ prices as a starting point for the tradeoff determination, but also considered the non-price factors. The SSA noted that offerors prices ranged in difference from 1% to 17% from each other, with the average difference being approximately 8%. AR, Tab 12, SSD, at 1. The SSA determined that, based on Master Lock’s superior past performance, award would be made to Master Lock for all lock types where that offeror’s price was either lower, or was no more than 8% higher than Evergreen’s price. Id. The SSA determined that, based on Evergreen’s lower-rated past performance, award would be made to Evergreen for the balance of the lock types, i.e., where that offeror’s price represented a greater than 8% price savings as compared to Master Lock. Id.

We think this evaluation was reasonable because the non-price evaluation for each offeror was to be based on factors that did not depend on which lock was being offered--i.e., past performance, socio-economic considerations, and JWOD considerations. Consequently, price was the only difference between the offerors regarding each of the distinct lock types offered. The SSA’s determination was for each lock type, in essence, that an 8% difference represented a reasonable price premium for Master Lock’s advantage on the non-price evaluation. In sum, we conclude that this tradeoff decision was not merely a mechanical comparison of price, but instead represented a reasonable exercise of business judgment by the SSA.

Finally, Master Lock argues that the SSA’s decision to rate Evergreen’s proposal “neutral” under the socio-economic and JWOD evaluation factors was inconsistent with the solicitation. DLA contends that its selection decision did take these factors into consideration, and that the “neutral” ratings were consistent with the solicitation. We agree with the protester that the agency’s assignment of “neutral” evaluation ratings was unreasonable, and further conclude that the evaluation was inconsistent with the solicitation’s stated award scheme because it resulted in a selection decision that ignored the socio-economic and JWOD evaluation factors.

The record here shows that the tradeoff decision considered only one of the non-price evaluation factors, past performance. For the 22 lock types awarded to Master Lock, the SSA concluded that the protester’s “outstanding rating for past performance demonstrated the best overall value to the government, with price and past performance weighted equally.” AR, Tab 12, SSD, at 1. For the 13 lock types awarded to Evergreen and challenged by the protester, the record also shows that the agency did not consider the socio-economic or JWOD considerations evaluation factors. The SSA concluded that “[f]or the remaining 13 items . . . award is recommended to Evergreen,” because “Evergreen is the lowest priced offeror, and their past performance is rated overall as good.” Id.

Thus, the record shows, the tradeoff decision did not consider the socio-economic or JWOD considerations evaluation factors. The solicitation stated, however, that price would be considered along with three non-price factors: past performance, socio-economic considerations, and JWOD considerations. RFP at 66. Furthermore, the RFP specifically advised offerors that “[a]n offeror who proposes a higher percentage, complexity level, and variety of participation by” small business and JWOD concerns, “will receive a higher rating.” RFP at 67-68. On this record, we conclude that the selection decision was inconsistent with the solicitation’s award scheme.

DLA contends that, notwithstanding the solicitation’s identification of three non-price factors, the agency had a reasonable basis for rating Evergreen’s proposal as “neutral” under these factors, and thus not factoring them into the award determination.[7] The agency contends that the “neutral” ratings were reasonable because Evergreen was itself a small business offeror, and thus “has fewer opportunities to subcontract to meet the socio-economic and JWOD factors.” AR, Tab 11, PNM, at 4; Tab 12, SSD, at 1. The agency also argues that a “neutral” rating for a small business was reasonable because it furthered the agency’s goal of promoting opportunities for small businesses. SAR at 13.

The clear effect of these neutral ratings, as discussed above, was that the agency only considered one non-price factor: past performance. Nothing in the RFP stated that small business offerors were exempt from evaluation under these factors, or that an offeror’s status as a small business could offset an otherwise negative rating under these factors. For the same reason, we think the agency unreasonably concluded that Evergreen’s status as a small business and its “poor” ratings made that offeror equal to Master Lock’s “good” ratings for these evaluation factors. Furthermore, DLA’s rationale for rating Evergreen as “neutral” under the socio-economic considerations factor because the offeror was itself a small business has no rational relevance to the evaluation of the offeror under the JWOD considerations factor.

In sum, we conclude that DLA’s tradeoff decision for the 13 lock types awarded to Evergreen relied on a tradeoff that only considered past performance and price, based on the agency’s unreasonable determination that Evergreen’s proposal should be rated “neutral” under the socio-economic and JWOD considerations evaluation factors. We further conclude that because Master Lock had a higher rating than Evergreen for these factors, the protester was prejudiced by this error, and sustain the protest because of the flawed tradeoff decision. See McDonald Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).  (Master Lock Company, LLC, B-309982.2, June 24, 2008) (pdf)


During the hearing, counsel for the agency asked the CO to explain “what the government was looking for in the overall solicitation.” AD at 1:57:45. The CO stated the agency was seeking to identify offerors that had “experience in providing all services under all the categories under one contract.” Id. at 1:57:55. The CO further stated that in order to be considered equivalent in terms of experience to the incumbent, an offeror would need to have performed at least one contract involving every service sought under the solicitation. Id. at 2:02:45, 2:04:50.

Agencies are required to evaluate proposals based solely on the factors identified in the solicitation, and must adequately document the bases for their evaluation conclusions. Intercon Assocs., Inc., B-298282, B-298282.2, Aug. 10, 2006, 2006 CPD para. 121 at 5. While agencies properly may apply evaluation considerations that are not expressly outlined in the RFP where those considerations are reasonably and logically encompassed within the stated evaluation criteria, there must be a clear nexus between the stated criteria and the unstated consideration. Global Analytic Info. Tech. Servs., Inc., B-298840.2, Feb. 6, 2007, 2007 CPD para. 57 at 4.

The solicitation stated that offerors experience would be evaluated as follows: “Experience will be evaluated in terms of the size, scope and complexity of the operation. Experience in the following [eight] critical areas, listed in alphabetical order, will be evaluated.” RFP sect. H-1(d)(1). We agree with the agency that the solicitation anticipated award of a single contract, and that the ability to perform all of the services under a single contract is a basis for evaluation. We do not agree, however, that the CO’s “one contract” criterion for evaluating the relevance of offerors’ experience was a reasonable proxy for that evaluation. Instead, we think that the RFP does not support the agency’s “one contract” interpretation for evaluating experience, and that the interpretation was not reasonably related to the stated evaluation criteria.

The RFP does not state that the agency was seeking proposals from offerors who had performed all of the eight critical areas of experience under "one contract"; instead, the solicitation states that the agency will evaluate offerors' experience to determine whether their experience with the eight critical areas is similar to the requirements of the solicitation. The CO's "one contract" approach meant that the agency did not consider any offeror to have equivalent experience to the incumbent contractor unless the offeror had performed the exact same services required under the solicitation in the same manner as the incumbent, i.e., under one contract.

In addition to being inconsistent with the RFP, the CO's interpretation appears to have unduly restricted competition by unreasonably disfavoring non-incumbent firms competing with the incumbent. Specifically, the agency's action prejudiced CES by precluding consideration of whether offerors' references demonstrated, individually or collectively, experience that was similar in size, scope or complexity to the solicitation requirements. In this regard, the CO simply assumed, without meaningful analysis, that CES's collective experience, which the record shows clearly included multi-function contracts involving all of the services required under the solicitation, could not have been the equal to MMC's under the incumbent contract. On this record, we conclude that the agency's evaluation was not reasonably consistent with the stated evaluation factors. (Consolidated Engineering Services, Inc., B-311313, June 10, 2008) (pdf)


With respect to the testing of the array prototypes, Lockheed argues that it was improperly denied the opportunity specified in the RFP to repair its array before phase 2 of the towed testing. The Navy responds that Lockheed had already been provided an opportunity to repair its array before the RFP was issued, and the RFP had warned offerors that "the government may not complete all the tests listed" and thus the Navy had the discretion to omit phase 1, and even if the firms had been given a repair opportunity, Lockheed might not have been able to successfully repair its array.

We have held that where an agency provides in a solicitation for the evaluation of a product sample--a situation analogous to the prototypes being tested here--that evaluation must be fair, reasonable, and consistent with the evaluation criteria. Design Contempo, Inc., B‑252589.2, Aug. 11, 1993, 93-2 CPD para. 90 at 4. This includes an obligation to perform product tests as described in a solicitation. Mine Safety Appliances Co., B‑238597.2, July 5, 1990, 90‑2 CPD para. 11 at 11. Thus, while our Office will not make an independent determination of the merits of an offeror's proposal or, in the case of a product demonstration, the performance of the offeror's product, we will review the evaluation record, including the results of any test demonstration, to ensure that the agency's technical judgment has a rational basis and is consistent with the stated evaluation criteria. Exploration Prods., B-279251.2, B-279251.3, June 1, 1998, 98‑2 CPD para. 15 at 5.

The RFP provisions quoted above anticipated the possible failure of this equipment before the beginning of phase 2 towed testing, and provided certain repair rights to each vendor in such a situation. Specifically, the RFP provided that in phase 1 the offeror would be given a single repair opportunity of up to 7 days in which to return a failed prototype array to a working state. Lockheed was denied this opportunity the RFP "ground rules" had promised.

Additionally, given the specific language of the RFP here, we think it is not reasonable for the Navy to argue that it was allowed to omit the phase 1 repair opportunity--particularly where that omission brought about exactly the type of harm that the RFP seemed to be designed to avoid. The Navy emphasizes that phase 1 was also intended, in part, to allow the offeror to train Navy personnel in the proper handling and operation of the array, and we accept the Navy's argument that its personnel needed no further training. Nevertheless, the phase 1 testing plainly promised a repair opportunity, apparently in an effort to ensure that the prototype arrays would be operational at the start of phase 2 towed testing.

The Navy points out that both offerors repaired their arrays prior to issuance of the RFP, and argues that Lockheed was not entitled to a second repair opportunity. In our view, however, the earlier repair opportunity cannot be relied upon by the Navy to meet a promise it had not yet made. In any event, the mid-March repairs (made before the prototypes were shipped from Florida to Idaho) cannot reasonably be seen as a substitute for the RFP-provided right to restore a failed array to an operational status at the most crucial time under the RFP, that is, pierside at Lake Pend Oreille, immediately before the beginning of the towing testing.

We also are not persuaded by the Navy's speculative assertions that Lockheed might have been unable to repair its array, if it had been offered that opportunity. On this subject, Lockheed answers with its own speculation that it could have repaired its array quickly and easily using spares that it had on hand. Our process is ill-suited to deciding protests on the basis of speculation--by either party. In our view, we need not determine that Lockheed would have successfully repaired its array; we need only conclude that it was denied the opportunity to do so immediately before phase 2 testing, and that this was contrary to the ground rules specified in the RFP. 
(Lockheed Martin Maritime Systems & Sensors, B-299766; B-299766.2, August 10, 2007) (pdf)


JPDT asserts that the agency improperly relaxed the SFO's requirements only for Stonebridge by accepting its letter of commitment as sufficient proof that the above described proposed amenities will exist. The protester states that, had it known that a mere letter of commitment to provide future amenities would suffice, it could have used this information to propose new amenities that would have increased its score under the access to amenities subfactor.

It is a fundamental principle of government procurement that a competition must be conducted on an equal basis, that is, offerors must be treated equally and be provided with a common basis for the preparation of their proposals. Continental RPVs, B-292768.2, B-292768.3, Dec. 11, 2003, 2004 CPD para. 56 at 8; Systems Mgmt., Inc.; Qualimetrics, Inc., B-287032.3, B-287032.4, Apr. 16, 2001, 2001 CPD para. 85 at 8. We will sustain a protest that an agency improperly relaxed its requirements only for the awardee where the protester establishes a reasonable possibility that it was prejudiced by the agency's actions. Datastream Sys., Inc. B-291653, Jan. 24, 2003, 2003 CPD para. 30 at 6.

We find that the agency's evaluation of Stonebridge's proposed amenities was inconsistent with the solicitation. As stated above, the SFO provided that “the offeror must demonstrate to the reasonable satisfaction of the Government (i.e., through evidence of signed leases, construction contracts, etc.) that such amenities will exist by the Government's required occupancy date.” AR, Tab 2, SFO at 7. We think this language informed offerors that some level of evidence of a proposed amenity to be furnished by a third party, beyond a mere promise of its existence, had to be provided in order for an offer to receive evaluation credit for the proposed amenity. The agency asserts that Stonebridge's promise is contractually enforceable, and that it thus was reasonably satisfied that the awardee would provide the amenity. However, the key consideration here is not whether a promise could be viewed as providing some level of assurance that a third party amenity would be available, but whether the agency's reliance on the promise alone was consistent with the terms of the SFO. Again, we find that it was not. The SFO stated that offerors "must demonstrate" that the proposed amenities would exist, indicated in the parenthetical that this was to be “through evidence,” and then gave examples of satisfactory evidence. We do not think a bare promise satisfied the SFO requirement that offerors "demonstrate" the existence of future amenities through "evidence." It follows that, in accepting Stonebridge’s promise, the agency relaxed the evidence requirement only for the benefit of Stonebridge, without advising JPDT and the other offerors of the reduced evidence standard.

The agency asserts that "all offerors were informed" during oral discussions that they could improve their offers by providing amenities in their building, and that "the government would accept, in addition to letters of intent or other proof, the guarantee of a financially responsible offeror as proof that the amenity will be 'existing' at the time of occupancy." AR, Tab 1, Contracting Officer’s Statement, at 3. The agency cites the protester’s addition of a fitness center reserved to its building after discussions as evidence that JPDT was aware that future amenities could be supported merely by an offeror’s contractual guarantee. Agency Response to Comments, May 16, 2008, at 7.

The record simply does not support the agency's position. JPDT denies that it was told that the agency would accept an offeror’s guarantee as the sole evidence that the amenity would exist at the time of occupancy. In support of this denial, JPDT has furnished: (1) a declaration executed by the vice president of one of its teaming partners who attended the discussions, in which he reports the information conveyed by the agency and specifically denies that the agency advised that an offeror’s guarantee would suffice to verify the existence of a future amenity; and (2) a contemporaneous e-mail reporting in detail the matters raised by the agency during discussions, which makes no mention of the agency’s having relaxed or even discussed the evidence of future amenities requirements. Declaration of JPDT Partner Boston Properties Vice President; E-mail From Bennett Group DC to Boston Properties [JPDT partners], 9‑12-07 Meeting Notes, Sept. 12, 2007.

In addition, the contemporaneous record of discussions provides no support for the agency’s position. Specifically, GSA's statement of objectives for the negotiations makes no reference at all to the level of evidence required to establish future amenities, let alone any reference to permitting JPDT to rely on a promise or guarantee as evidence of third party amenities. AR, Tab 22, DOJ Negotiation Objectives. There is nothing else in the record that confirms that the agency advised JPDT of the relaxed evidence requirement. Further, we do not agree with the agency that JPDT's offer of a fitness center in its building indicates it understood the level of evidence required for third party amenities, since the fitness center was to be furnished by JPDT, not a third party entity. We conclude that there is no evidence that the agency advised JPDT of the relaxed requirements.  (New Jersey & H Street, LLC, B-311314.3, June 30, 2008) (pdf),  (See Trammell Crow Company, B-311314.2, June 20, 2008)  (pdf)


An agency is obligated to conduct an evaluation consistent with the evaluation scheme set forth in the RFP. FAR sect. 15.305(a); Serco, Inc., B-298266, Aug. 9, 2006, 2006 CPD para. 120 at 8. We recognize that proposal evaluation judgments are by their nature often subjective; nevertheless, the exercise of these judgments in the evaluation of proposals must be reasonable and must bear a rational relationship to the announced criteria upon which competing offers are to be selected. Systems Research and Applications Corp.; Booz Allen Hamilton, Inc., B‑299818 et al., Sept. 6, 2007, 2008 CPD para. 28 at 11. In order for our Office to perform a meaningful review, the record must contain adequate documentation showing the bases for the evaluation conclusions and source selection decision. Southwest Marine, Inc.; American Sys. Eng’g Corp., B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD para. 56 at 10.

Here, we agree that the SSET’s evaluation identified and documented the SRD requirements under which the firm's evaluated strengths and weaknesses were assessed. Nevertheless, the record does not establish that the SSAC and SSA, in considering those strengths and weaknesses, applied the relative weights identified in the RFP for the various SRD requirements (under which the KPPs were most important). Moreover, the record does not show any consideration by the SSAC or SSA of the fact that Boeing’s proposal was evaluated as satisfying significantly more SRD requirements than Northrop Grumman’s.

For example, the record shows that most of Boeing’s evaluated “major discriminators” in the aerial refueling area were assessed under KPP requirements, and conversely most of Northrop Grumman’s evaluated “major discriminators” were assessed under less important non-KPP/KSA “requirements.” Specifically, the SSAC identified as “major discriminators” the following requirements that Boeing’s aircraft satisfied but Northrop Grumman’s aircraft did not: (1) the capability to [Deleted] (a KPP No. 1 objective); (2) the capability, [Deleted] (another KPP No. 1 objective); (3) the capability to [Deleted] (another KPP No. 1 objective); and (4) the capability to [Deleted] (a “noteworthy” non‑KPP/KSA requirement). See AR, Tab 55, PAR, at 13. The SSAC identified as a “major discriminator” for Northrop Grumman that firm’s satisfaction of one KPP objective (KPP No. 2 objective for exceeding the fuel offload unrefueled range), where Boeing also satisfied this objective but to a lesser degree. The Air Force also identified as “major discriminators” for Northrop Grumman under this area the firm’s better air refueling efficiency, larger boom envelope, and better offload and receive rates, all of which were non-KPP/KSA requirements.

Although the record thus evidences that most of Boeing’s evaluated “major discriminators” were assessed under KPP requirements, and conversely most of Northrop Grumman’s evaluated “major discriminators” were assessed under less important non-KPP/KSA requirements, we have found no document in the contemporaneous evaluation record that shows that the SSAC or SSA gave any meaningful consideration to the weights that were to be assigned to the various KPP, KSA, and other requirements. That is, the SSAC’s briefing slides to the SSA and its PAR do no more than identify the SRD requirements for which the evaluated discriminators were assessed, but do not evidence any consideration of the descending order of importance assigned to these various SRD requirements.

In its briefing to the SSA, the SSAC merely reports each of the firms’ “advantages” without any analysis of whether or not Boeing’s “advantages” (which as indicated above are mostly derived from KPP objectives) were entitled to greater weight than Northrop Grumman’s advantages (which are mostly derived from less important non‑KPP/KSA requirements). See, e.g., AR, Tab 55, SSAC Recommendation Briefing to SSA, at 6-7 (aerial refueling discriminators). Similarly, in the PAR, the SSAC duly reports the relative order of importance that was to be assigned to the KPP, KSA and other requirements, see AR, Tab 55, PAR, at 4, but there is no suggestion that the assigned weights to these requirements were applied in any of the SSAC’s comparative analyses of the firms’ evaluated discriminators. See, e.g., id. at 13‑14 (aerial refueling discriminators). Thus, although it is true that the SSAC reported in the PAR that it considered the “priorities of KPP, KSA, and non‑KPP/KSAs,” see id. at 29, the record does not provide any evidence of such a weighing.

Similarly, in [the SSA’s] selection decision, the SSA reports that the evaluation of the “offerors’ proposed capabilities and approaches against the SRD requirements were made in the following order of importance: KPPs, KSAs, and all other non-KPP/KSA requirements.” See AR, Tab 54, Source Selection Decision, at 5. Despite this reported recognition of the varying weights assigned to the different SRD requirements, the SSA’s decision document does not evidence any consideration of the fact that Boeing’s assessed “major discriminators” were derived from requirements that were identified as being more important than most of the requirements from which Northrop Grumman’s discriminators were derived. See id. at 5-7.

We agree with the Air Force that it is permissible to identify relative strengths found under less important evaluation factors to be discriminators for selection purposes, where there are lesser relative differences favoring another proposal under more important evaluation factors. However, we find no evidence in this record that any such analysis, which considered the relative weight of the KPPs, KSAs and non‑KPP/KSA requirements, was performed here.

The Air Force also identified more “discriminators offering less benefit” for Boeing’s proposal than for Northrop Grumman’s proposal in the aerial refueling area. Specifically, the SSAC identified five such discriminators for Boeing that were assessed under 13 different SRD requirements, and only one such discriminator for Northrop Grumman that was assessed under 2 SRD requirements. As noted above, the RFP requested that offerors satisfy as many of the “trade space” SRD requirements “as possible.” See RFP, SOO for KC-X SDD, at 2. Despite having solicited proposals that satisfy as many SRD requirements as possible, there is no evidence in the record showing that either the SSAC or the SSA accounted for the fact that Boeing’s proposal was evaluated as satisfying significantly more SRD requirements in the aerial refueling area than did Northrop Grumman’s proposal. In fact, in deciding that Northrop Grumman had a significant advantage in the aerial refueling area, the SSA did not even discuss the fact that Boeing had more “discriminators offering less benefit” than did Northrop Grumman, much less that Boeing satisfied far more SRD requirements than did Northrop Grumman in this area.

As noted by the Air Force, the assignment of adjectival ratings and the source selection should generally not be based upon a simple count of strengths and weaknesses, but upon a qualitative assessment of the proposals. See Kellogg Brown & Root Servs., Inc., B‑298694.7, June 22, 2007, 2007 CPD para. 124 at 5. Such a qualitative assessment must be consistent with the evaluation scheme, however. Here, although the RFP expressly encouraged offerors to satisfy as many of the “trade space” SRD requirements “as possible,” see RFP, SOO for KC-X SDD, at 2, the record shows no evidence that the Air Force gave any consideration to Boeing’s offer to satisfy significantly more trade space SRD requirements. This, in our view, is not a matter of simply counting strengths and weaknesses, but of evaluating the advantages and disadvantages of competing proposals consistent with the RFP’s evaluation scheme. See, e.g., Systems Research and Applications Corp.; Booz Allen Hamilton, Inc., supra, at 14.

In short, our review of the record indicates that, as illustrated by the aerial refueling area examples above, the Air Force failed to evaluate proposals in accordance with the RFP’s evaluation criteria. That is, the record evidences that the Air Force failed to assess the relative merits of the offerors’ proposals based upon the importance assigned to the various SRD requirements by the RFP or to account for the fact that Boeing proposed to satisfy far more SRD requirements than did Northrop Grumman. 
(The Boeing Company, B-311344; B-311344.3; B-311344.4; B-311344.6; B-311344.7; B-311344.8; B-311344.10; B-311344.11, June 18, 2008) (pdf)


Operational Utility Area

Boeing also complains that the Air Force unreasonably evaluated the firms’ proposals in the operational utility area under the key system requirements subfactor. The RFP provided that evaluation of this area would consist of an assessment of the offeror’s approach to meeting (or exceeding, where appropriate) SRD requirements, “including the following: aircraft maneuverability, worldwide airspace operations, communication/information systems (including Net-Ready capability), treaty compliance support, formation flight, intercontinental range, 7,000-foot runway operations, bare base airfield operations, and growth provisions for upgrades.” RFP sect. M.2.2.1.2.c. Boeing contends that its proposal should have been found technically superior to Northrop Grumman’s in this area, and not essentially equal, as the SSA and SSAC concluded. See AR, Tab 54, Source Selection Decision, at 8.

As noted above, the SSET found that both offerors satisfied the three KPP thresholds identified in this area, and partially met the one KPP objective identified; the SSET also found that both offerors met all associated KSA thresholds and objectives. See AR, Tab 55, PAR, at 20-21. The SSAC also identified two “major discriminators” in each of the firms’ respective proposals; the discriminators for Boeing were the firm’s (1) [Deleted] and (2) [Deleted], and for Northrop Grumman were (1) the ability of the KC‑30 to operate from a 7,000-foot runway carrying more fuel than the KC-767, and (2) the KC-30’s longer ferry range compared to the KC-767’s. Id. Boeing’s two “major discriminators” were assessed under 17 different SRD requirements, while Northrop Grumman’s two discriminators were assessed under only 2 SRD requirements. The SSAC also identified a number of “discriminators offering less benefit” for each firm: six such discriminators for Boeing assessed under 19 SRD requirements, and five such discriminators for Northrop Grumman assessed under 6 SRD requirements. Id. at 22‑24.

Here, too, as we described above with respect to the aerial refueling area, the record does not evidence that the SSAC and SSA, in determining that the firms’ proposals were essentially equal in the operational utility area, gave any consideration to the fact that Boeing’s proposal was evaluated as satisfying more SRD requirements than Northrop Grumman’s in this area, as was sought by the RFP. Given this failure by the SSAC and SSA to address Boeing’s apparent advantage in meeting more SRD requirements than Northrop Grumman, we conclude that the agency’s evaluation and selection decision was unreasonable in this regard.

Boeing also complains that the agency conducted misleading discussions with Boeing with respect to whether Boeing had fully satisfied the KPP No. 7 objective, Net-Ready Capability. RFP, SRD sect. 3.2.4.1.1; app. A, Net-Ready Capability KPP, at 3. The KPP No. 7 objective provides that the offeror’s “system should be capable of accomplishing all operational activities identified in Table 5.” RFP, SRD, app. A, at 4. Table 5 of the appendix identified a number of information exchange requirements. Id. at 15-25.  (The Boeing Company, B-311344; B-311344.3; B-311344.4; B-311344.6; B-311344.7; B-311344.8; B-311344.10; B-311344.11, June 18, 2008) (pdf)


First, the agency’s argument that the protester has no way of knowing whether Alon provided information regarding the value of its TSA contract at its oral presentation clearly is not dispositive of the issue, given that the agency has not asserted that Alon did in fact furnish such information. There simply is no evidence in the record that Alon’s TSA contract (or its MDA or NWS contracts) were similar in magnitude to the effort here. Accordingly, the issue before us is whether it was consistent with the terms of the RFQ and reasonable for the evaluators to have considered relevant Alon’s experience on projects that were highly similar in scope and nature, but not similar in magnitude to the effort solicited here.  In our view, it was not consistent with the terms of the RFQ, which essentially provided that prior work efforts had to be similar in scope, magnitude, and nature to be considered relevant, for the evaluators to have considered Alon’s contracts with the TSA, NWS, and MDA relevant. See Si-Nor, Inc., B-292748.2 et al., Jan. 7, 2004, 2004 CPD para. 10 at 17. We think that this case is distinguishable from Computer Sys. Dev. Corp., cited by the agency above, in that in the cited case, the solicitation identified size, complexity, and participation as factors to be considered in determining the significance of a prior work effort, but did not require that a project have been similar in all three respects to be considered significant, whereas here, the RFQ defines relevant work as work of similar scope, magnitude, and nature, meaning that all three factors need to be present for a contract to be considered relevant. 
That does not end our analysis, however, given that it is the agency’s position that the terms of the RFQ notwithstanding, contracts of lesser magnitude than the effort here may in fact be relevant where sufficiently similar in scope and nature. In other words, the agency’s position is, in essence, that the RFQ overstates the agency’s requirements pertaining to prior work effort relevance.  Where an agency takes the position that a solicitation overstates its requirements, and proposes to evaluate vendor responses on the basis of its actual, as opposed to its stated, requirements, the relevant inquiry is whether the protester was prejudiced by the overstatement. Unfair competitive prejudice from a waiver or relaxation of the terms of the RFQ exists where the terms were not similarly waived or relaxed for the protester, or the protester would be able to alter its quotation to its competitive advantage if it were given the opportunity to respond to the relaxed terms. See 4-D Neuroimaging, B‑286155.2 et al., Oct. 10, 2001 , 2001 CPD para. 183 at 10. Here, the evaluators considered prior work efforts of lesser magnitude in their evaluation of both Alon’s and DMSJV’s corporate experience; that is, there is no evidence that the evaluators waived the requirement pertaining to similarity in magnitude for Alon while failing to waive it for DMSJV. Further, we see no basis to conclude that DMSJV would have cited different contracts as examples of its own corporate experience had it recognized that contracts dissimilar in magnitude might be considered relevant. Indeed, since three of the five contracts cited by the protester in its quotation as examples of its corporate experience have present values of less than 5 percent of its evaluated price for the services here, it appears that the protester, like the agency and the successful vendor, assumed that contracts dissimilar in dollar value might nonetheless be considered relevant if sufficiently similar in other respects. Given the apparent lack of prejudice to DMSJV, the agency’s consideration of Alon’s prior contracts despite their dissimilarity in magnitude provides no basis to object to the evaluation.  (Data Management Services Joint Venture, B-299702; B-299702.2, July 24, 2007) (pdf)


As discussed above, DRC clearly stated in its quotation that it did not intend to comply with the on-site requirement for at least one of the web page designer/developer positions, and the record establishes that the agency clearly recognized this aspect of DRC’s quotation; yet, the agency evaluated the personnel proposed to fill these positions as constituting a “Significant Strength.” Further, in performing the contract, none of the personnel DRC proposed to perform either of the two web page designer/developer positions has ever performed on-site. Finally, as noted above, LAI maintains that, had it been permitted to similarly propose off‑site personnel to fill these positions, it could have proposed more qualified personnel. On this record, it is clear that the agency permitted DRC to propose to perform the contract requirements on a basis that was materially different than that required by the solicitation. That is, the agency effectively relaxed the solicitation’s stated requirements for on-site performance without providing an opportunity for the other competing firms to submit quotations on a similar basis. See SeaSpace, supra. It is also clear that the agency’s relaxation of this requirement was detrimental to, and prejudiced, LAI’s competitive position. (Low & Associates, B-297444.2, Inc., April 13, 2006) (pdf)


It appears that the agency accorded little or no weight to the degree to which offerors proposed to accelerate completion ahead of the 2012 required site closure date, instead evaluating the acceleration aspect of the proposed schedules solely in comparison to Fluor Hanford’s ultimate 2018 closure date. The agency’s disregarding the differences in the offerors’ proposed completion dates was inconsistent with the solicitation. While it may be the case that SCA’s more relaxed proposed schedule after the deactivation phase offered more flexibility to deal with transitions in the project work, potential problems or unexpected decreases in agency funding, the fact is that the solicitation made it clear that acceleration of the project was desired. In this regard, the solicitation schedule stated that “DOE is committed to achiev[ing] accelerated closure that does not jeopardize safety and protection of workers, the public, or the environment.” RFP sect. B.1. Likewise, the SOW advised that “[t]he purpose of the FFTF Closure Project is to safely accelerate the deactivation and decommissioning [of] the FFTF and its support structures.” SOW sect. C.1. Lest offerors be unclear as to the role of the contemplated contract in meeting that goal, the SOW added that “[t]he contractor has the flexibility to develop the project structure and to sequence the work, subject to [National Environmental Policy Act] requirements, to optimize the project schedule to achieve safe, cost‑effective and accelerated closure of the site.” RFP sect. C.3. Likewise, section H of the solicitation stated that “[t]he FFTF Project and this contract have a mission of accelerated closure.” RFP sect. H.1(a). In this context, we think the reference in section M (quoted above) to evaluating “the extent to which” an “offeror’s approach to deactivation, decommissioning, and demolition . . . optimizes project execution and schedule” could reasonably be understood by the offerors as including consideration of how soon closure of the site would be accomplished. Indeed, all three offerors apparently read the RFP in this manner, as reflected by the fact that all proposed accelerated completion, ahead of the 2012 mandatory completion date. While the agency may have intended to limit the extent to which greater acceleration would be rewarded in the evaluation, this intent was not reflected in the RFP. Further, we agree with the protesters that, because the evaluation criterion in question concerned evaluation of an offeror’s technical proposal, and evaluation of the offeror’s cost proposal was already accounted for under another criterion, it was improper for the agency to consider SCA’s low cost in its evaluation under the technical approach criterion. This is especially significant in light of the fact that the technical/management proposal was to be significantly more important in the source selection than the cost/fee proposal. RFP sect. M.2. We conclude that the agency’s evaluation of schedule‑‑which furnished a moderate discriminator in SCA’s favor and was specifically cited by the SSO in the SSD in concluding that SCA’s proposal had an advantage over FRC’s under the technical approach criterion, the most important technical/management evaluation criterion‑‑failed to take into account the fact that FRC’s schedule offered what could be viewed as significantly greater acceleration of FFTF site closure than SCA’s. Further, while DOE may be correct that FRC would be less likely to meet its aggressive schedule, the agency does not show, nor does the record furnish any basis for concluding, that FRC would not be likely to complete closure earlier than SCA. (In contrast, as discussed below, while EPW’s proposed scheduled also offered greater acceleration than SCA’s, the agency evaluated EPW’s schedule as being premised on an essentially unacceptable technical approach.) Accordingly, we conclude that the agency did not reasonably evaluate the proposals in this area. (EPW Closure Services, LLC; FFTF Restoration Co., LLC, B-294910; B-294910.2; B-294910.3; B-294910.4; B-294910.5; B-294910.6; B-294910.7, January 12, 2005) (pdf)


We agree with ProTech that the source selection decision was unreasonable because the SSA in making his cost/technical tradeoff determination accorded the betterments factor less weight than identified by the RFP. As noted above, the SSA stated that the betterments factor was the "fourth, and least most important factor," but this factor was identified in the RFP as being equal in weight to the experience and past performance factors. Compare AR, Tab 21, Source Selection Decision, at 9, with RFP at 44. In fact, the SSA erroneously stated that all of the technical evaluation factors were listed in the RFP in descending order of importance. See AR, Tab 21, Source Selection Decision, at 1, 8-9. Thus, when the SSA performed his cost/technical tradeoff to determine whether Atherton's apparently superior technical proposal outweighed ProTech's significant price advantage, the SSA diminished the importance of the betterments factor, which was the only factor under which ProTech's proposal was evaluated as having a technical advantage over Atherton's proposal. The SSA's failure to accord the betterments factor the evaluation weight identified in the solicitation was exacerbated by the SSA's judgment that, under this factor, Atherton's offer of no betterments represented 63 percent of the value of ProTech's offer of six betterments. See id. at 9. This may have had the effect of further diminishing the value of ProTech's offer of betterments, where the awardee chose to offer only the solicitation's basic requirement. We fail to see how such an evaluation was in accord with the solicitation's evaluation scheme that informed offerors that "[m]ore betterments will be considered more favorably than fewer betterments." [9] RFP at 44. If the SSA had applied the correct weight to the betterment factor, there is a reasonable possibility that ProTech's lower priced proposal would have been selected for the award; accordingly, we find that ProTech was prejudiced by the agency's flawed source selection analysis. See McDonald-Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996). We therefore sustain the protest on this basis. (ProTech Corporation, B-294818, December 30, 2004) (pdf)


The record clearly shows, however, that the soap bubble test will not demonstrate compliance with the strength requirements because that test does not measure the strength of the bonding between the fittings and the bladder fabric, but merely determines whether the bladder leaks air after inflation. RFP Purchase Description, 4.5.2.1. As evidenced by the purchase description and as described by MPCs technical consultant, the leak test does not evaluate the strength of the bond between the fittings and the fabrics with specific pounds/inch loads exerted on the samples as contemplated by Table IVs strength requirements and the required tests contained in the specifications and referenced in the table. At best, the soap bubble test will determine whether, after inflation with air, the tanks leak at the areas where the fittings are bonded to the fabric. Additionally, the soap bubble test, as described in the purchase description and by MPC, does not involve subjecting the product sample to fuel immersion as required by the tests set forth in Table IV; thus, no information will be provided regarding the strengths that samples must demonstrate after immersion in the fuels. Consequently, since MPCs revised proposal fails to reasonably address the test requirements, we find that the agency improperly determined that MPCs proposal was technically acceptable and we sustain this basis of Cooleys protest.  (Cooley/Engineered Membranes; GTA Containers, Inc., B-294896.2; B-294896.3; B-294896.4, January 21, 2005) (pdf)


With respect to STEMs complaint that the agency relied upon an unstated criterion when it evaluated offerors reach back capability, USMC asserts that this capability, which refers to an offerors ability to call upon the personnel and other resources available from both itself and its team partners, is reasonably related to evaluation factors (1), (2) and (3). Based on our review, we agree with the agency that these factors all contemplated that the agency would evaluate the capability of the offerors team to call upon its personnel and resources to perform the work. For example, the RFP stated that offerors would be evaluated for their experience and capabilities that demonstrate familiarity and expertise with [USMC] programs as described in the Statement of Work; their demonstrated understanding of [the USMC] Installations and Logistics program missions, functions and goals; and employee technical expertise and experience . . . related to support of installations ... and military logistics programs. RFP M.1.2. These statements contemplate that the agency would evaluate an offerors capability and resources, which would include its ability to reach back to the resources of its team members. Accordingly, we find that the agency did not apply an unstated evaluation criterion in its evaluation. (STEM International, Inc., B-295471, January 24, 2005) (pdf)


As for Knit-Rite's challenge to the agency's technical evaluation methodology, we find that the methodology was reasonable. Indeed, we already held--in Apex Foot Health Indus. , supra --that the agency's evaluation methodology under this RFP was reasonable. Apex objected there--as KnitRite objects here--to the subjective nature of the evaluation. We rejected this argument, noting that, while the evaluation was subjective, this is what the RFP provided for; the RFP did not state that an objective, scientific process would be used in testing offered socks, but that a subjective evaluation of the socks would be performed. [4] RFP at 28. The evaluation consisted of the evaluators visually inspecting the socks, with special attention given to the seams, and then walking in the socks, with shoes, on carpeted and concrete floors, for approximately 10 minutes. The evaluators wore shoes to simulate actual usage and to assist in determining whether pressure was placed on the foot from any seam or crease. AR, exh. 6, Declaration of TEP Chairperson, at 2. It remains our view that the agency's methodology was reasonable and consistent with the evaluation scheme set forth in the RFP. (Knit-Rite, Inc., B-293088.3, August 5, 2004) (pdf)


CDC first argues that it was unreasonable for VA to consider the additional features Braun offered because these features were not specified in the solicitation. We disagree. As noted above, the RFQ expressly stated that VA would consider a vendor’s ability to offer additional features not required by the specifications. VA’s consideration of the Braun equipment’s ability to link with VA’s existing systems thus is entirely consistent with the RFQ. Further, VA had no obligation to hold discussions with CDC about its ability to offer this feature given that the RFQ stated that VA did not intend to hold discussions before selecting a vendor, see OMNIPLEX World Servs. Corp., B-282630.2, Sept. 22, 1999, 99-2 CPD ¶ 64 at 4, and, in fact, specifically advised vendors to include their best terms from a price and technical standpoint in their initial quotations. Similarly, VA was under no obligation to specify its dimensional requirements before downgrading the CDC equipment’s technical score for its inability to fit properly into the VA laundry facilities. The RFQ stated that equipment must be suitable for installation in the available space and that space limitations do exist for installation of the new equipment. It also advised vendors to perform a site visit to ensure that they could move or reinstall existing equipment alongside new equipment. It clearly was reasonable for VA to give CDC a less-than-maximum technical score for equipment that did not fit properly into the available space, especially when CDC had the opportunity to--and in fact did--visit the site for the very purpose of assessing such questions as whether its equipment might cause congestion of cart pathways.  (Chicago Dryer Company, B-293940, June 30, 2004) (pdf)


Where detailed technical proposals are sought and technical evaluation criteria are used to enable the agency to make comparative judgments about the relative merits of competing proposals, vendors are on notice that qualitative distinctions among competing proposals will be made under the various evaluation factors. See Leach Mgmt. Consulting Corp., B-292493.2, Oct. 3, 2003, 2003 CPD ¶ 175 at 4-5. In making such distinctions, an agency may properly take into account specific, albeit not expressly identified, matters that are logically encompassed by or related to the stated evaluation criteria. Si-Nor, Inc., B-292748.2 et al., Jan. 7, 2004, 2004 CPD ¶ 10 at ____. Here, the RFP required management of four different functional areas and required offerors to demonstrate their past performance and corporate experience with contracts of similar “complexity.” Clearly, an offeror’s past performance history and experience with managing the four functional areas to be performed is relevant to the offeror’s history and experience with regard to contracts that were similar in “complexity” to the RFP requirements. See Leach Mgmt. Consulting Corp., supra. Accordingly, it was reasonable for the agency to consider the extent of the offerors’ multifunction contracting history and experience when evaluating the past performance and corporate experience factors.  (Ashe Facility Services, Inc., B-292218.3; B-292218.4, March 31, 2004) (pdf)


In our view, the agency’s evaluation was clearly inconsistent with the terms of the solicitation. As indicated above, the RFP, while initially referring only to the evaluation of proposals to determine the extent of each offeror’s proposed subcontracting plan, was amended to provide that the “[e]valuation will include the extent of participation of small businesses in terms of the total value of the acquisition.” RFP, amend. 4, at L-11. B&R’s proposal plainly states that Ferguson-Williams, a small business, would perform approximately 40 percent of the work if B&R were awarded the contract.7 AR, Tab 5, B&R Technical Proposal, at 157. In light of this, we find that the agency’s evaluation of B&R’s proposal under the “Support for the Small Business, Small Disadvantaged Business, and Woman-Owned Business Program” evaluation criterion was unreasonable. See Summit Research Corp., B-287523; B-287523.3, July 12, 2001, 2001 CPD ¶ 176 at 7 (in evaluating proposals under small business participation factor, agency was required by the terms of the solicitation to consider whether the offeror itself was a small business in addition to whether the offeror proposed to rely on small business subcontractors).  (Burns and Roe Services Corporation, B-291530, January 23, 2003) (pdf)


Although this solicitation is not a model of clarity, the protester's interpretation that the solicitation required a two-step process, with the second step providing for something other than the consideration of the offerors' technical proposals on a “pass/fail” basis, is unreasonable. As set forth above, the RFP clearly provided in a number of places that each proposal would be evaluated under the technical capability factor “on a pass/fail basis” to determine technical acceptability, and in describing the technical capability factor and the relevant evaluation subfactors, included provisions that “define[] an acceptable (pass) rating.” RFP §§ M‑2, M-3(a). The solicitation also referred in a number of instances to the use of the PPT procedures for the selection of the best-value proposal, referenced the relevant Air Force Federal Acquisition Regulation Supplement section that details the PPT procedure, and explained that the PPT procedure here provides for the best‑value determination to be made from those “technically acceptable” proposals based upon a trade-off of past performance and price. RFP § M-2. Given the RFP's repeated references to the evaluation of proposals under the technical capability factor on a “pass/fail” basis, and the RFP's statements that only those proposals found to be technically acceptable would be eligible for award, we find the protester's argument that the RFP provided for the consideration of technical merit on a basis other than technical acceptability (or “pass/fail”) to be without merit. (All Phase Environmental, Inc., B-292919.2; B-292919.3; B-292919.4; B-292919.5; B-292919.6; B-292919.7, February 4, 2004) (pdf)


Here, the RFP specifications were primarily stated in terms of functional or performance requirements, which permitted an offeror to propose its own unique approach. In particular, the solicitation was silent with respect to whether the software should be web-based or client-server-based, or some combination of the two, and we see no legal defect in that. While the RFP thus left it to the offeror to propose what it believed to be the best approach for satisfying the RFP requirements, there was no guarantee that the agency would consider different approaches to be equally effective. Moreover, the agency was not required to advise a technically acceptable offeror during discussions that it considered another approach to be superior to that proposed by the offeror. See Canadian Commercial Corp./Canadian Marconi Co., B‑250699.4, Mar. 5, 1993, 93-1 CPD ¶251 at 7. (Cerner Corporation, B-293093; B-293093.2, February 2, 2004) (pdf)


In evaluating the revised CIS proposal, four of the five evaluators again prepared only cursory narrative materials. In terms of scoring, three of these four evaluators raised CIS’s score by [deleted] points; the agency’s final consensus technical evaluation report states that two of the three evaluators increased their scores based on their conclusion that the CIS proposal now met the personnel experience requirements, and that the third increased his score based on CIS’s providing “additional information” in its revised proposal. AR, exh. 7, at 5-6. Among these four evaluators, two assigned a final overall technical score of [deleted] points and two assigned a score of [deleted] points. Id. at 7. The fifth evaluator scored CIS’s revised proposal dramatically differently, reducing CIS’s score from [deleted] total points initially to [deleted] points on reevaluation. Unlike the other four evaluators, he prepared extensive narrative materials during his rescoring of the proposal, AR, exh. 4, at 25-26, and his unedited comments were ultimately incorporated into the final consensus technical evaluation report, along with a summary of the other evaluators’ limited comments. AR, exh. 7, at 5. The agency’s source selection decision document, AR, exh. 18, does not reflect any critical or independent analysis or evaluation of the proposals by the source selection official (SSO); instead, it relies entirely upon the numeric scores for purposes of the agency’s source selection decision. This being the case, the comments of the fifth evaluator regarding deficiencies in CIS’s proposal represent the sole support in the evaluation record for the relatively low ranking of CIS’s revised proposal. This is problematic for the agency because we find that the conclusions expressed by the fifth evaluator are unreasonable. (Computer Information Specialist, Inc., B-293049; B-293049.2, January 23, 2004)  (pdf)


The solicitation specified both minimum or threshold (T) requirements and desired or objective (O) requirements for the RIS and other MDNS subsystems. In addition, it identified Key Performance Parameters (KPP) and Additional Performance Parameters (APP). The solicitation described KPPs as “must-pass testing events” and provided that “[a]ny offering failing the (T) value of any of the KPPs will be removed from further testing and will not be considered for contract award.” RFP, amend. 5, § 3.1.2. The solicitation described APPs as “tradable parameters . . . used to measure effectiveness and performance,” and provided that [f]ailure to meet either (T) or (O) requirement values specified in an APP does not remove a submission from further testing or from consideration for contract award. APPs are evaluated to provide information leading to a best value award determination.  To the extent that by noting that “the SIR decreased the SOF operators’ ability to better and more rapidly acquire, identify, and accurately fire on enemy targets,” the contracting officer meant that the SIR configurations failed to improve the operators’ ability to sight and fire on enemy targets, improvement in firing accuracy was an APP (i.e., an objective or desired improvement), as opposed to a KPP (i.e., a requirement). See Subsection 3.2.1. Accordingly, to the extent that the evaluators found ARMS’s SIRs unsuitable on the basis that they failed to improve operators’ ability to acquire, identify, and fire on enemy targets, the evaluators in effect found the SIRs unsuitable for failing to meet the values specified in an APP. In our view, rejection on such a basis was contrary to the terms of the RFP, which, as previously noted, provided that “[f}ailure to meet either (T) or (O) specified in an APP does not remove a submission from further testing or from consideration for contract award.”  (Atlantic Research Marketing Systems, Inc., B-292743, December 1, 2003)


Next, Dismas protests the agency's evaluation of offerors' past performance, the most heavily weighted evaluation factor, on the basis that the agency failed to request the same type of information from all references and in a manner consistent with that specified by the RFP. In this regard, the RFP stated: “The Contractor Evaluation Form [CEF], located in Section J, will be used to collect [past performance] information.” Agency Report, Tab 1, RFP at 61. The CEF requested references to assign numerical ratings, ranging from 1 to 5,[12] in three contract performance areas--contract compliance, customer satisfaction, and business relations. Agency Report Tab 7, CEF, at 2-3. Of significance, the CEF also contained the following directive to references: “If performance is over and above the minimum requirements of the SOW, add either one, two or three points [to the aggregate point score].” Agency Report Tab 7, CEF, at 2.  The agency does not dispute that it failed to use the RFP-specified CEF for many of Dismas's references. Rather, for any reference other than the Bureau of Prisons, the agency states that it prepared a shorter “letter/questionnaire.” Agency Report, Contracting Officer's Statement, at 15. Although the letter/questionnaire sought the same numerical/adjectival ratings for the three contract performance areas identified in the CEF, it did not direct references to increase an offeror's rating “[i]f performance is over and above the [SOW] minimum requirements.” Agency Report, Tab 7, Letter/Questionnaire, at 38.  (Dismas Charities, Inc. , B-292091, June 25, 2003) (pdf)


Independence specifically contends that it was improperly downgraded for failing to provide items not required by the RFP, such as documentation of project management, project timelines or flowcharts, organizational charts, key personnel resumes, quality control plan, safety plan, and the identity of subcontractors. However, offerors were specifically instructed by the RFP to provide a detailed technical proposal that contained “sufficient information to reflect a thorough understanding of the requirements and a detailed, description of the techniques, procedures and program for achieving the objective of the specifications/statement of work.” RFP at 82. Offerors were also specifically instructed to “at a minimum” provide information concerning the “name and qualifications of key personnel” and to “address[] supervision and communication,” “crew size and experience,” “quality control plan,” “proposed schedule of operations,” and “safety.” RFP at 84.  Given these requirements, we think that the items noted as missing or deficient in Independence's proposal were reasonably encompassed under the four listed subfactors of the technical approach/organization structure factor: (1) how the project will be managed and staffed, addressing contractor's proposed schedule of operations--which reasonably encompassed project management information and organizational charts as an indicator of how the project will be managed, subcontractor identity as an indicator of staffing, and the time frame for completion of the work as an indicator of scheduling; (2) skills and skill levels within the firm to accomplish the project--which reasonably encompassed key personnel qualifications and experience, as may be reflected in resumes; and (3) quality control and (4) safety--which both reasonably encompassed providing plans. RFP at 84, 86.  (Independence Construction, Inc. , B-292052, May 19, 2003)  (pdf)


An agency may not induce offerors to prepare and submit proposals based on one premise, then make source selection decisions based on another. Hattal & Assocs., B‑243357; B-243357.2, July 25, 1991, 91-2 CPD ¶ 90. Accordingly, once offerors are informed of the evaluation criteria against which proposals will be evaluated, the agency must adhere to the stated criteria, or inform all offerors of all significant changes. DynCorp, B-245289, B-245289.2, Dec. 23, 1991, 91-2 CPD ¶ 575 at 5.  Here, the agency clearly advised offerors that proposals would be evaluated under 14 of the 17 technical evaluation factors based on an objective assessment as to whether or not the proposed IBR would meet the stated performance requirements. The agency's stated basis of evaluation for these factors was specifically described in contrast to the subjective grading by which the remaining three technical factors would be evaluated. Notwithstanding these publicly stated ground rules for the competition, the agency proceeded to make qualitative distinctions between the two proposals based on factors which were neither disclosed, nor reasonably subsumed within the stated requirements. Ultimately, the agency concluded that [deleted] “among the most highly rated” based on these distinctions.  (Mnemonics, Inc., B-290961, October 28, 2002) (pdf)  (txt version)


The agency's action here effectively restricted the competition to firms with direct corporate detention/custody experience and represents the application of an unstated minimum requirement in the evaluation. If this represented the agency's actual minimum needs, the agency was required to amend the RFP to reflect those needs.[9] FAR § 15.206(a); Canberra Indus., Inc., B-271016, June 5, 1996, 96-1 CPD ¶ 269 at 4.  (Omniplex World Services Corporation, B-290996.2, January 27, 2003)  (txt version)


In any case, while agencies are required to identify the major evaluation factors in a solicitation, they are not required to identify all areas of each factor that might be taken into account, provided that the unidentified areas are reasonably related to or encompassed by the stated criteria. S3 LTD, B-288195, Sept. 10, 2001, 2001 CPD P: 164 at 10. Here, a system's high frequency performance was indicated by the model (NVTHERM) the offerors knew would be used in the evaluation, and increasing frequency was related to range in that it indicated an ability to perform the same task at a greater range. Tr. at 29-30, 193. At a minimum, in these circumstances, high frequency performance was reasonably related to the thermal channel performance specified in the RFP.  (DRS Systems, Inc., B-289928.3; B-289928.7, September 18, 2002)  (pdf)


With respect to the merits of the protest, the agency basically contends that there is no language in section M of the RFP stating how CLINs for existing INMARSAT services would be awarded, so that the awards, based on the evaluation of 3-year pricing, are consistent with section G.6 because they may save the government money, inasmuch as it is not certain that the options would be exercised, as offerors were advised in section M.  This ID/IQ contract had two types of CLINs.  The CLINs for existing INMARSAT services were, in accordance with section G.6, to be awarded to the “winning Contractor” “based on a comparison of all awardee[s'] contract prices.”  The solicitation contemplated no future competitions for this work among the awardees.  In contrast, work covered by the other CLINs would, in accordance with section G.5, be generally awarded based on competition among the awardees.  The agency's basic argument here is that it is not bound by section M in making the awards of the CLINs for existing INMARSAT services because section M did not specify how the awardees of these CLINs would be selected and because it cautioned that options may not exercised.  However, a solicitation must be read and interpreted as a whole, and where it is appropriate sections other than section M of the solicitation must be considered in determining how proposals should be evaluated.  See Joseph W. Beausoliel, B-285643, Aug. 31, 2000, 2001 CPD ¶ 26 at 4; Recon Optical, Inc. B-232125, Dec. 1, 1988, 88-2 CPD ¶ 544 at 8-9.  Here, section G.6 stated that the awards for the existing INMARSAT services “will be based upon low price,” based on a “comparison of all awardee[s'] contract prices” with the low price controlling which awardee would receive the award of these CLINs.  Section M.4.2.b of the RFP then expressly provided that “the evaluation period is 120 months.”  No other period of evaluation is provided for in section M.  Thus, we find that the RFP unambiguously provided that the awards for each CLIN covering existing INMARSAT services would be made to the awardee offering the lowest 10‑year pricing for these services, as reflected in its proposal under the RFP.  (Global Communications Solutions, Inc., B-291113, November 15, 2002)


There is another defect in the agency's evaluation under the objective suitability factor. The RFP stated that the evaluation under this factor would be under a descending-order-of-importance weighting scheme for both criteria and sub-criteria. The agency's evaluation erroneously applied equal weight to all criteria and sub-criteria in awarding Carr's proposal [DELETED] points and M&S Farms' proposal [DELETED] points. During the course of this protest, the agency acknowledged this defect and re-scored the proposals applying the following weights to the criteria:

Criterion 1 --- 120 points
Criterion 2 --- 90 points
Criterion 3 --- 80 points
Criterion 4 --- 60 points
Criterion 5 --- 50 points

The new technical scores resulted in Carr's proposal still receiving a higher point score with [DELETED] points as compared to M&S Farms' proposal with [DELETED] points. Agency Report at 14-15. However, the re-scoring applied equal weight to the sub-criteria under each criterion that had them. This re-scoring thus fails to accord sub-criteria descending weights consistent with the evaluation scheme stated in the RFP. Since the sub-criteria under which the protester's proposal was scored lower than the awardee's were all at or near the bottom of the lists of sub-criteria, and thus should be accorded less weight than any of the evaluation schemes applied by the agency to date, the difference in overall technical scores (prior to any correction of other defects identified in this decision) should be less than calculated by the agency.  (M&S Farms, Inc., B-290599, September 5, 2002)  (pdf)


This argument is without merit. While the RFP included standard "best value" evaluation language providing for award based on the "most advantageous" proposal, it did not go on to establish any evaluation factors or a scheme for conducting a comparative evaluation. To the contrary, in lieu of evaluation factors, the RFP stated only that proposals had to "[meet] all the terms and conditions of the solicitation," that the offeror had to be responsible, and that the price had to be considered fair and reasonable. Consistent with these limited evaluation considerations, the RFP required offerors to provide only a "technical description of the items being offered in sufficient detail to evaluate compliance with the requirements in the solicitation." RFP at 10. Reading these provisions together, there was no basis for the agency to conduct a comparative evaluation; rather, notwithstanding inclusion of the standard "best value" evaluation language, it was sufficiently clear from the RFP that the award was to be made to the low-priced offeror that demonstrated compliance with the RFP requirements, i.e., acceptability. See Vistron, Inc., B-277497, Oct. 17, 1997, 97-2 CPD ¶ 107 at 4.  (Duncan Security Consultants, Inc., B-290574, August 8, 2002)  (pdf)


Oral advice that conflicts with the solicitation is not binding on the government, and an offeror therefore relies on an oral explanation of a solicitation at its own risk. Input/Output Tech., Inc., B-280585, B-280585.2, Oct. 21, 1998, 98-2 CPD para. 131 at 5. Here, while the response to Diamond's questions was provided in the form of an e-mail, rather than orally, the result is the same. The solicitation put offerors, including Diamond, on notice that proposals would be evaluated against stated evaluation factors, and specific requirements; if an offered model did not satisfy one or more of the RFP requirements, it would be rejected as unacceptable. No informal advice--oral, or otherwise--could change this basis for evaluation, since the advice would not amend the solicitation.  (Diamond Aircraft Industries, Inc., B-289309, February 4, 2002)


While procuring agencies are required to identify the significant evaluation factors and subfactors in a solicitation, they are not required to identify the various aspects of each factor which might be taken into account, provided that such aspects are reasonably related to or encompassed by the RFP's stated evaluation criteria. Farnham Security, Inc., B-280959.5, Feb. 9, 1999, 99-1 CPD para. 100 at 3. GSA asserts that organizational structure and transition/start-up plan are logically related to the staffing plan factor, and therefore were properly considered under that factor.  NCLN20 does not dispute that these items are logically related to the staffing plan factor, and we think the agency reasonably could expect offerors to recognize the need to address these areas, even without an express RFP requirement for the information. We therefore find no basis for questioning the agency's position.  (NCLN20, Inc., B-287692, July 25, 2001)


In a negotiated procurement, an agency has broad discretion in determining the manner and extent to which it will make use of evaluation results. TRW, Inc., B-234558, June 21, 1989, 89-1 CPD ¶ 584 at 4. Agencies do not, however, have the discretion to announce in the solicitation that they will use one evaluation plan and then follow another; once offerors are informed of the criteria against which their proposals will be evaluated and the source selection decision made, the agency must adhere to those criteria or inform all offerors of significant changes. DynCorp, B-245289, B-245289.2, Dec. 23, 1991, 91-2 CPD ¶ 575 at 5. Specifically, it is improper to induce an offeror to prepare and submit a proposal emphasizing technical excellence, then evaluate proposals only for technical acceptability, and make the source selection decision on the basis of technical acceptability and lowest cost or price. Hattal & Assocs., B-243357, B-243357.2, July 25, 1991, 91-2 CPD ¶ 90 at 7-9.  (Special Operations Group, Inc., B-287013; B-287013.2, March 30, 2001)


While agencies have broad discretion in making source selection decisions, their decisions must be rational and consistent with the solicitation’s stated evaluation scheme; an agency may not announce one basis for evaluation and award in the RFP and then evaluate proposals and make award on a different basis. Marquette Med. Sys., Inc., B-277827.5, B-277827.7, Apr. 29, 1999, 99-1 CPD ¶ 90 at 5-6. The source selection decision document articulates three considerations other than past performance that formed the basis for the agency’s decision to select TAC’s higher-priced offer for award. None of these considerations is either identified in the RFP as an evaluation criterion, or logically encompassed within the stated criteria.  (Tennier Industries, Inc., B-286706.2; B-286706.3, March 14, 2001)


IGC primarily argues that the agency improperly made award on the basis of an undisclosed criterion--proven installation compatibility of a third party's gradient shim assembly with the offered magnet, including consideration of the areas of mechanical vibrations and inductive coupling.  The evaluation here was unobjectionable. While installation compatibility of the magnet with a third party's gradient shim assembly was not specifically required in the solicitation, the need for such compatibility should have been clear from the discussion questions.  (Intermagnetics General Corporation, B-286596, January 19, 2001)


It is fundamental that offerors must be advised of the bases upon which their proposals will be evaluated. Sci-Tec Gauging, Inc.; Sarasota Measurements & Controls, Inc., B-252406, B-252406.2, June 25, 1993, 93-1 CPD para. 494 at 7. It is also fundamental that the contracting agency must treat all offerors equally, which includes providing a common basis for the preparation and submission of proposals and not disparately evaluating offerors with respect to the same requirements. Id. at 8. In reviewing a protest of an agency's evaluation of proposals, we examine the record to ensure that the agency's evaluation was reasonable and consistent with the stated evaluation criteria. Ogden Support Servs., Inc., B-270012.2, Mar. 19, 1996, 96-1 CPD para. 177 at 5.  (Rockwell Electronic Commerce Corporation, B-286201; B-286201.2; B-286201.3, December 14, 2000)


Requirements stated in source selection plans which are not disclosed to offerors do not give outside parties any rights. Mandex, Inc.; Tero Tek Int'l, Inc., B-241759 et al., Mar. 5, 1991, 91-1 CPD para.  (Wilson 5 Service Company, Inc., B-285343.2; B-285343.3, October 10, 2000)


The most significant example in this regard is G&N's claim that its own experience significantly exceeded both the RFP requirements and BMAR's experience, so that G&N should have been more highly rated than BMAR in this area. Because the RFP does not call for awarding extra evaluation credit for exceeding the stated requirements, the agency was not obligated to credit additional evaluation points for doing so. See SeaSpace, B-241564, Feb. 15, 1991, 91-1 CPD ¶ 179 at 4-5. Since the evaluators determined that G&N's proposal met the RFP requirements "to the fullest extent," they rated G&N's proposal outstanding. To the extent G&N is arguing that the agency was required to reserve the highest rating for a proposal that exceeded the requirements, as noted above, there is nothing in the RFP to support this view. The issue is not, as G&N repeatedly insists, whether BMAR's and G&N's proposals demonstrated identical or precisely equivalent technical merit or equivalent experience vis-à-vis each other, but rather, whether each satisfied the RFP requirements and met the RFP definition of "outstanding."  (G&N, L.L.C., B-285118; B-285118.2; B-285118.3, July 19, 2000)


Moreland's underlying premise that the enhancements proposed by Heidorn are unrelated to the evaluation factors established in the SFO is misplaced. While the precise "extras" offered by Heidorn were not included as part of the minimum requirements listed in the SFO, they are very closely related to the stated evaluation criteria. For example, the "quality of building and design concept" and its subfactor, "building design," expressly include "the way natural daylight will be accessed within the building design, i.e., the number of windows, skylights and open courtyards" as considerations. SFO § 2.4(2)(a)(2). The SFO even mentions as an alternative to the courtyards depicted in the SFO floorplans "maintaining the courtyard space within the building and providing a minimum 15' X 15' skylight centered in the three courtyards," just as Heidorn proposed in its revised final offer. Id. Thus, the SFO very clearly placed offerors on notice that the agency was interested in a design concept that would maximize the elements of natural light and energy efficiency, and the enhancements offered in Heidorn's revised proposal simply reflected a better implementation of the agency's stated preferences in this area. Accordingly, the agency's recognition of these enhancements in evaluating Heidorn's proposal is unobjectionable.  (The Moreland Corporation, B-283685, December 17, 1999)


Interlog's protest raises but one issue for our review; whether the agency's evaluation scheme reserved such a significant portion of available points for proposals exceeding the stated requirements of the RFP that the evaluation turned on unstated criteria.  When an RFP states a best value evaluation plan; as opposed to selection of the lowest-priced, technically acceptable proposal; evaluation of proposals is not limited to determining whether a proposal is merely technically acceptable; rather, proposals may be further differentiated to distinguish their relative quality by considering the degree to which technically acceptable proposals exceed the standard minimum requirements or will better satisfy the agency's needs. Israel Aircraft Indus., Ltd., MATA Helicopters Div., B-274389 et al., Dec. 6, 1996, 97-1 CPD para. 41 at 5-6; Meridian Corp., B-246330.3, July 19, 1993, 93-2 CPD para. 29 at 6-7.  (Interlog, Inc., B-282139, April 27, 1999)


In evaluating a proposal, 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.  (Farnham Security, Inc., B-280959.5, February 9, 1999)


While adjectival ratings and point scores are useful as guides to decision-making, they generally are not controlling, but rather, must be supported by documentation of the relative differences between proposals, their weaknesses and risks, and the basis and reasons for the selection decision. FAR sec. 15.608(a)(3), 15.612(d)(2) (June 1997); Century Envtl. Hygiene, Inc., B-279378, June 5, 1998, 98-1 CPD para. 164 at 4; Engineering and Computation, Inc., supra, at 3.  Here, the record is devoid of any documentation of the agency's evaluation of final revised proposals. There is no indication of an analysis of the revised proposals, no information in the record regarding proposal strengths and weaknesses after discussions, and no discussion as to why the strengths and weaknesses from the initial evaluation remained the same.  (Biospherics Incorporated, B-278508.4; B-278508.5; B-278508.6, October 6, 1998)


Agency's source selection decision in which price is considered only as an eligibility factor (i.e., price does or does not fall within agency's budget) is improper because it fails to consider price as a significant evaluation factor, as required by 10 U.S.C. sec. 2305(a)(2)(A) and sec. 2305(a)(3)(A) (1994) and as contemplated by the best value evaluation plan stated in the solicitation.  (Electronic Design, Inc., B-279662.2; B-279662.3; B-279662.4, August 31, 1998)


Concerning the lack of industrial hygiene technician resumes, Century argues that this was improperly considered a weakness since the RFP did not require resumes for industrial hygiene technicians. In response to a question asked by our Office, HRSA concedes that the RFP required resumes only for professional personnel and that industrial hygiene technicians are not considered professional personnel. The evaluator that made this comment assigned only 7 points (out of 20) to Century's BAFO. The record includes no explanation of how many points this comment cost Century's proposal in this evaluator's scoring; since it was one of only two negative comments, it appears to have been a substantial number.  (Century Environmental Hygiene, Inc., B-279378, June 5, 1998)


First, it was improper for the Army not to consider the results of the sample delivery order cost evaluation results in reaching its award decision. The Competition in Contracting Act requires that a solicitation for competitive proposals state all significant factors that will be considered in the evaluation of proposals and ultimate award decision, 10 U.S.C. sec. 2305(a)(2)(A) (1994), and that agencies evaluate proposals based solely on the factors included in the solicitation. 10 U.S.C. sec. 2305(b)(1). By virtue of this statutory requirement, an agency may not represent that it will evaluate proposals on one basis, and then use another. Thus, given the RFP's specific representation that sample delivery order costs would be considered in the cost evaluation, the Army could not ignore that information in making its source selection. Group Techs. Corp., B-240736, Dec. 19, 1990, 90-2 CPD para. 502 at 9-10 (agency is required to use cost evaluation tools provided in the evaluation scheme).  (FC Business Systems, Inc., B-278730, March 6, 1998)  (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
Ascella Technologies Inc. B-412679, B-412679.2: Apr 27, 2016  (pdf) New McCann-Erickson USA, Inc. B-414787: Sep 18, 2017
Premiums & Specialties, Inc.. B-410247: Nov 13, 2014  (pdf) Phoenix Air Group, Inc. B-412796.2,B-412796.3: Sep 26, 2016
Harris Corporation, B-409869: Sep 4, 2014  (pdf) Quality Services International, LLC, B-410156, B-410156.2, B-410156.3: Nov 3, 2014  (pdf)
Caduceus Healthcare, Inc., B-407791, Feb 21, 2013  (pdf) Logistics 2020, Inc. B-408543, B-408543.3, Nov 6, 2013  (pdf)
DSS Healthcare Solutions, LLC, B-403713.3, June 22, 2011  (pdf) Coburn Contractors, LLC B-408279.2, Sep 30, 2013  (pdf)
Wood Cuts, B-403960.3, May 19, 2011  (pdf) Nuclear Production Partners LLC; Integrated Nuclear Production Solutions LLC, B-407948, B-407948.2, B-407948.3, B-407948.4, B-407948.5, B-407948.6, B-407948.7, B-407948.8, Apr 29, 2013  (pdf)
Retail Clean Management Systems, B-403651; B-403651.2, November 18, 2010  (pdf) Colt Defense, LLC, B-406696, Jul 24, 2012  (pdf)
TrailBlazer Health Enterprises, LLC, B-402751; B-402751.2, July 20, 2010  (pdf) Rocamar Engineering Services, Inc., B-406514, Jun 20, 2012  (pdf)
Master Lock Company, LLC, B-309982.3, December 10, 2008 (pdf) Y&K Maintenance, Inc., B-405310.6, Feb 2, 2012 (pdf)
Master Lock Company, LLC, B-309982.2, June 24, 2008 (pdf) IBM Global Business Services, B-404498,B-404498.2, Feb 23, 2011  (pdf)
Data Management Services Joint Venture, B-299702; B-299702.2, July 24, 2007 (pdf) APEX-MBM, JV, B-405107.3, October 3, 2011  (pdf)
STEM International, Inc., B-295471, January 24, 2005 (pdf) Mission Essential Personnel, LLC, B-404218.2; B-404218.3, June 14, 2011)  (pdf)
Knit-Rite, Inc., B-293088.3, August 5, 2004 (pdf) PMO Partnership Joint Venture, B-403214; B-403214.2, October 12, 2010 (pdf)
Chicago Dryer Company, B-293940, June 30, 2004 (pdf) Wackenhut Services, Inc., B-402550.2, June 7, 2010  (pdf)
Ashe Facility Services, Inc., B-292218.3; B-292218.4, March 31, 2004) (pdf) T-C Transcription, Inc., B-401470, September 16, 2009 (pdf)
All Phase Environmental, Inc., B-292919.2; B-292919.3; B-292919.4; B-292919.5; B-292919.6; B-292919.7, February 4, 2004) (pdf) Consolidated Engineering Services, Inc., B-311313, June 10, 2008 (pdf)
Cerner Corporation, B-293093; B-293093.2, February 2, 2004 (pdf) Lockheed Martin Maritime Systems & Sensors, B-299766; B-299766.2, August 10, 2007 (pdf)
Apex Foot Health Industries, B-293088, January 23, 2004 (pdf) New Jersey & H Street, LLC, B-311314.3, June 30, 2008 (pdf)  (See Trammell Crow Company, B-311314.2, June 20, 2008)  (pdf)
Independence Construction, Inc. , B-292052, May 19, 2003 (pdf) The Boeing Company, B-311344; B-311344.3; B-311344.4; B-311344.6; B-311344.7; B-311344.8; B-311344.10; B-311344.11, June 18, 2008 (pdf)
Preferred Systems Solutions, B-291750, February 24, 2003 (pdf)  (txt version) Low & Associates, B-297444.2, Inc., April 13, 2006 (pdf)
Northrop Grumman Technical Services, Inc.; Raytheon Technical, B-291506; B-291506.2; B-291506.3; B-291506.4, January 14, 2003.  (txt version) EPW Closure Services, LLC; FFTF Restoration Co., LLC, B-294910; B-294910.2; B-294910.3; B-294910.4; B-294910.5; B-294910.6; B-294910.7, January 12, 2005 (pdf)
Rome Research Corporation, B-291162, November 20, 2002 (pdf) ProTech Corporation, B-294818, December 30, 2004 (pdf)
Wilson Beret Company, B-289685, April 9, 2002  (pdf) Cooley/Engineered Membranes; GTA Containers, Inc., B-294896.2; B-294896.3; B-294896.4, January 21, 2005 (pdf)
DRS Systems, Inc., B-289928.3; B-289928.7, September 18, 2002  (pdf) Burns and Roe Services Corporation, B-291530, January 23, 2003 (pdf)
United Payors & United Providers Health Services, Inc., B-282075.4, June 26, 2002 (pdf) Computer Information Specialist, Inc., B-293049; B-293049.2, January 23, 2004  (pdf)
Duncan Security Consultants, Inc., B-290574, August 8, 2002)  (pdf) Atlantic Research Marketing Systems, Inc., B-292743, December 1, 2003 (pdf)
North American Military Housing, LLC, B-289604, March 20, 2002  (pdf) Dismas Charities, Inc. , B-292091, June 25, 2003 (pdf)
Diamond Aircraft Industries, Inc., B-289309, February 4, 2002  (Pdf Version) Mnemonics, Inc., B-290961, October 28, 2002)  (pdf)  (txt version)
KIRA Inc., B-287573.4; B-287573.5, August 29, 2001 Omniplex World Services Corporation, B-290996.2, January 27, 2003  (txt version)
NCLN20, Inc., B-287692, July 25, 2001 Consolidated Engineering Services, Inc., B-291345; B-291345.2, December 23, 2002  (pdf)  (txt version)
Intermagnetics General Corporation, B-286596, January 19, 2001 Global Communications Solutions, Inc., B-291113, November 15, 2002
Wilson 5 Service Company, Inc., B-285343.2; B-285343.3, October 10, 2000 M&S Farms, Inc., B-290599, September 5, 2002  (pdf)
G&N, L.L.C., B-285118; B-285118.2; B-285118.3, July 19, 2000 Myers Investigative and Security Services, Inc., B-288468, November 8, 2001
The Moreland Corporation, B-283685, December 17, 1999 Special Operations Group, Inc., B-287013; B-287013.2, March 30, 2001
Alaskan Publications, B-283272, October 27, 1999 Tennier Industries, Inc., B-286706.2; B-286706.3, March 14, 2001 (pdf)
GCI Information Services, Inc., B-282074, May 28, 1999 Cortland Memorial Hospital, B-286890, March 5, 2001
Interlog, Inc., B-282139, April 27, 1999 Rockwell Electronic Commerce Corporation, B-286201; B-286201.2; B-286201.3, December 14, 2000
Farnham Security, Inc., B-280959.5, February 9, 1999 Olympus Building Services, Inc., B-285351; B-285351.2, August 17, 2000
Bulova Technologies LLC, B-281384; B-281384.2, February 3, 1999 AIU North America, Inc., B-283743.2, February 16, 2000
Vistron, Inc., B-277497, Oct. 17, 1997 Saco Defense Corporation, B-283885, January 20, 2000
  Kathpal Technologies, Inc.; Computer & Hi-Tech Management, Inc., B-283137.3; B-283137.4; B-283137.5; B-283137.6, December 30, 1999
  Beneco Enterprises, Inc., B-283154, October 13, 1999
  ATA Defense Industries, Inc., B-282511; B-282511.2, July 21, 1999
  Johnson Controls World Services, Inc.; Meridian Management, B-281287.5; B-281287.6; B-281287.7, June 21, 1999
  Intellectual Properties, Inc., B-280803, November 19, 1998
  MCR Federal, Inc., B-280969, December 14, 1998
  Biospherics Incorporated, B-278508.4; B-278508.5; B-278508.6, October 6, 1998
  Electronic Design, Inc., B-279662.2; B-279662.3; B-279662.4, August 31, 1998
  Century Environmental Hygiene, Inc., B-279378, June 5, 1998
  FC Business Systems, Inc., B-278730, March 6, 1998  (pdf)

U. S. Court of Federal Claims - Key Excerpts

The foregoing Solicitation provisions form the basis of plaintiff’s protest. Plaintiff challenges that the TEP’s conclusion that intervenor’s proposal was technically acceptable lacks a rational basis. According to plaintiff, in evaluating intervenor’s proposal, the TEP improperly relied on information that was not contained in the proposal to conclude that intervenor’s proposed PM and DPM each possessed the experience required by the Solicitation. Pl.’s Br. filed Mar. 9, 2012, at 10. Plaintiff explains that the résumés submitted by intervenor listed various positions that the proposed PM, Victor Fontanez, Jr., and DPM, Vidal Garza, each had held with the United States Army (the “Army”). Id. at 5-6. Although the résumés indicated the total number of years during which Messrs. Fontanez and Garza served in the Army, they did not specify the dates of service or number of years in each position. See AR 254 (providing Messrs. Fontanez’s and Garza’s résumés). Nor did the résumés identify the specific responsibilities performed in each position to enable the TEP to determine if the position entailed program- or project-management experience. Pl.’s Br. filed Mar. 9, 2012, at 6.

Nonetheless, plaintiff argues that the Army experience “was the lynchpin of the TEP’s conclusion that [Messrs. Fontanez and Garza] each had the required five years of program management experience.” Id. at 19; see also id. at 8-9.

Plaintiff explains that, due to the absence of this information from intervenor’s proposal, the TEP made “general assumptions” about the nature of the duties that Messrs. Fontanez and Garza performed while serving in the positions listed in their résumés to determine if they amounted to program-management experience. Pl.’s Br. filed Mar. 9, 2012, at 10. However, the TEP lacked any personal knowledge regarding the individuals’ actual performance of the listed positions. In evaluating whether the responsibilities inherent in each position amounted to program-management experience, the TEP considered whether the position entailed “management of several aspects of a program.” Id. at 7 (referencing AR 1276 (“Key to considering this as [program management] experience, the TEP considered the fact that he [Mr. Fontanez] managed several aspects . . . affording him overall program management experience.”)); see also AR 1277 (“This experience is relevant because Mr. Garza managed a program that contained many specific projects . . . .”). Plaintiff challenges that these “naked assumptions” resulted in an irrational evaluation. Id. at 23.

Plaintiff also argues that, because intervenor’s proposal did not indicate the number of years served in each position, the TEP undertook its own analysis to ascertain the total number of years of qualifying service that the individuals possessed. Id. at 10. In the GAO proceedings, the agency explained that three members of the TEP formerly served as military officers and knew from their past experience that “positions . . . entailing command . . . of an airborne unit, company or battalion are typically for controlled tours of 3 years for a domestic assignment and 1 year for an overseas assignment.” Id. (citations omitted) (internal quotation marks omitted). Thus, relying on the three TEP members’ experience gleaned in the military, the TEP credited Messrs. Fontanez and Garza with three years of experience for domestic positions and one year of experience for overseas positions.

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Plaintiff explains that, as a result of the TEP’s assumptions regarding length of service and nature of duties constituting program-management experience, the TEP concluded that Mr. Fontanez had “8.5 years of program management experience, five years of which were from positions in the Army for which his resume did not provide dates of service.” Id. at 8. Similarly, the TEP found that Mr. Garza had “seven years of program management experience, six years of which were from positions in the Army for which his resume did not provide dates of service.” Id. at 9. The TEP consequently adjudged intervenor to be technically acceptable for Factor 1, Subfactor F. Id. at 19. Plaintiff challenges the assignment of this rating as irrational, explaining that the Solicitation prohibited the TEP’s reliance on information outside the four corners of the proposal and not within the evaluators’ personal knowledge. Id. Because the résumés did not include dates of service sufficient to show that the proposed PM and DPM possessed the requisite experience, as required by the Solicitation, plaintiff contends that the TEP should have concluded that intervenor’s proposal was technically unacceptable. See id. at 18-19.

Moreover, plaintiff argues that the evaluators failed to consider relevant information contradicting the assumptions on which they relied. Id. at 19. Although the TEP chairman, Kyle A. Richardson, stated that other TEP members considered the three-year/one-year assumption to be appropriate, see Richardson Decl. ¶¶ 7-8, he did not reference any Army regulations that indicate that “the nature, context, conditions, and . . . approximate year of performance of a specific position” bear on the duration of a particular assignment, Pl.’s Br. filed Mar. 9, 2012, at 28; see also Army Reg. 614-100, Officer Assignment Policies, Details, & Transfers: Assignments, Details, and Transfers, ¶ 5-3 (July 15, 1984) (“Army Reg. 614- 100”) (setting forth twenty-eight exceptions that may curtail duration of military assignment). As an example, plaintiff cites Army Regulation 600-20, governing command assignments, alleging that it prescribes a duration that does not comport with the TEP’s three-year/oneyear assumption. Pl.’s Br. filed Mar. 9, 2012, at 29. Additionally, many regulations provide for reassignment or transfer, which may shorten the duration of an assignment. See id. at 30- 31.

Plaintiff also provided declarations from two individuals—both retired Brigadier Generals in the United States Army with careers as Army Aviators—that directly challenge the TEP’s assumptions. See id. at 32-33; see also Decl. of Barry J. Sottak, Mar. 9, 2012, ¶¶ 9-10; Decl. of John N. Dailey, Mar. 9, 2012, ¶ 6. These declarations supply information that contradicts that of the TEP evaluators concerning the length of a typical tour of duty in the Army and dispute that the TEP had any reasonable basis for characterizing Messrs. Fontanez’s and Garza’s respective résumé experiences as qualifying experience that satisfied the Solicitation’s requirements. Generals Sottak and Dailey stated that, in their experience, the Army did not apply a three-year/one-year assumption to determine the length of a tour of duty and that no such “typical baseline” existed. See Sottak Decl. ¶ 9; Dailey Decl. ¶ 6. General Sottak explained that Army policy provided that domestic and European tours were for two years. Sottak Decl. ¶ 9. He nonetheless qualified this statement, noting that exceptions to tour lengths, though uncommon, could be obtained for personal reasons and that, therefore, the TEP could not make assumptions about the duration of an assignment “[w]ithout knowing the specific facts about the individual serving in the position and the time and place at which the position is served.” Id. General Dailey echoed this sentiment. Dailey Decl. ¶ 6.

Finally, plaintiff contends that the evaluators acted arbitrarily in applying general assumptions in an unequal manner. Pl.’s Br. filed Mar. 9, 2012, at 33. Citing Professors Ralph C. Nash, Jr., and John Cibinic, Jr., plaintiff argues that the TEP’s use of information outside the four corners of intervenor’s proposal may have been permissible if it extended that practice to evaluation of the other proposals, including plaintiff’s. See id. Plaintiff explains that it received an “unacceptable” rating because it did not demonstrate its ability to establish an account with the U.S. Army’s Logistics Support Activity (“LOGSA”), see AR 894. See Pl.’s Br. filed Mar. 9, 2012, at 33; Third Decl. of Stephen H. Harris, Mar. 9, 2012, at ¶ 27. One member of the TEP, however, knew that plaintiff already had established a LOGSA account during its incumbency and did not draw on this personal knowledge. Third Harris Decl. ¶ 27. Plaintiff also was rated “unacceptable” for failing to explain how it would integrate Analysis, Design, Development, and Implementation Employee training (“ADDIE”) into its training program, despite the fact that two members of the TEP were informed periodically during plaintiff’s incumbency that plaintiff uses and incorporates ADDIE in its training programs, see AR 897. See Third Harris Decl. ¶¶ 29-31. Additionally, plaintiff noted that it received a “marginal” rating for failing to include in its proposal a management plan that satisfied criteria in the Solicitation, see AR 875-77. Pl.’s Br. filed Mar. 9, 2012, at 33-34. In justifying the rating, the TEP stated that “‘the Offeror states that they have satisfied the [management plan] requirement in the past . . . [but] the Offeror does not demonstrate a clear management plan . . . . [T]he [agency] cannot make the assumption that the Offeror understands based on past performance . . . .’” Id. at 34 (first alteration in original) (quoting AR 877).

Plaintiff does not assert a claim for unequal or disparate treatment or contend that the evaluators should have treated its proposal differently, see Pl.’s Br. filed Mar. 20, 2012, at 16; instead, plaintiff contends that the TEP’s failure to supply missing information based on the evaluators’ experience with plaintiff’s contract shows that they acted arbitrarily and capriciously in doing so for intervenor’s technical proposal. Pl.’s Br. filed Mar. 9, 2012, at 35. Plaintiff thus urges that, because the TEP’s act of filling in gaps in intervenor’s proposal lacks a rational basis and is arbitrary and capricious, its finding intervenor’s proposal technically acceptable is irrational. Id.

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IV. Rationality of the TEP’s assumptions regarding duration of assignments

Despite defendant’s contention that the Solicitation did not require that the résumés identify the amount of time spent in each position, the evaluation factors contemplated that offerors would clearly set forth the information necessary to demonstrate that their proposed PM and DPM had the required number of years of experience in each qualifying position. See AR 111 (providing, in section L.26.1.3, that “[t]he offeror[’](s) discussion must clearly and convincingly demonstrate how the requirements of the contract will be met”); AR 109 (providing, in section L.26, that “the offeror shall present information in sufficient detail to enable an evaluator, having a general professional expertise in the response area of interest, to thoroughly understand the response to this solicitation”). The Solicitation’s requirements are not satisfied by a résumé’s providing the candidate’s total number of years of programmanagement experience. It should be noted that the evaluators themselves did not accept the statement of aggregate years of service on either candidate’s résumé. While, as defendant has noted, noncompliance with the Solicitation by failing to include such information did not render an offeror technically unacceptable, see AR 135 (noting, in section M.4, that, “[t]o be eligible for award, offerors are required to meet all solicitation requirements . . . [and that] [f]ailure to comply with all solicitation requirements may result in the offeror being removed from award consideration”), plaintiff has established that the TEP’s assignment of dates of service to the positions held by Messrs. Fontanez and Garza was based on an assumption that the three members’ experience with typical durations for tours of duty in the Army could apply to a particular individual. The TEP’s conclusion that intervenor’s proposal was technically acceptable does not lack a rational basis merely because the proposal was not fully compliant with Solicitation requirements. This is a red herring as the deficiency is not one of completeness, but the rationality of applying a key assumption.

In evaluating intervenor’s proposal, the TEP proceeded to assess each position to determine whether it entailed program-management experience. See Richardson Decl. ¶ 7 (“In reviewing each separate job description, the TEP considered whether the experience qualifies as ‘in the area of program management.’”). If a particular position required that the candidate “manage[] several aspects” of a program, the TEP concluded that it constituted program-management experience. Id. Once the TEP determined that a position was qualifying, it assigned a duration to it based not on the actual period of time during which Messrs. Fontanez or Garza served in that position—presumably an objective fact susceptible of verification—but on the assumption that domestic assignments typically lasted for three years and overseas assignments lasted for one year. See Richardson Decl. ¶¶ 7-8.

Despite having engaged in this multi-step evaluation, the TEP did not mention its efforts in its Technical Evaluation Consensus Report that set forth its evaluation of intervenor’s proposal and determination whether or not the proposal satisfied the Solicitation’s requirements. AR 910. In fact, in remarking on intervenor’s ability to satisfy the qualifications in Factor 1, Subfactor F, the TEP stated only that “[t]he offeror provides compliant resumes for both PM and DPM positions. The PM meets the security clearance and citizenship requirements, as well as PM Aviation and Aviation Mgmt Experience. The DPM meets the minimum requirements.” Id. Notably, plaintiff did not ground its protest on the TEP’s failure to observe any instruction or applicable regulation that required a fuller explication of how the TEP members analyzed the specific showings that the offerors had been instructed to include in the résumés for PM and DPM, nor does the court attach any significance to the conclusory evaluation. The agency was allowed to elaborate on the TEP’s evaluation process before the GAO, and it took advantage of the opportunity.

During plaintiff’s second GAO protest, the agency submitted a declaration from Mr. Richardson. His declaration interjected the rationale for the TEP’s determination that the résumés were compliant. See Richardson Decl. ¶¶ 7-8. It was Mr. Richardson, not plaintiff, who introduced the fact that the TEP members did not accept the résumés’ statements of aggregate experience. He explained that the TEP assigned a duration to each position that was listed as involving qualifying experience. See id. It was he who explained that three TEP members who are retired military officers 7/ drew on their experience to apply a standard to determine a typical length of a tour of duty. Id. (providing that, “based on the knowledge and experience of the retired officers on the panel, such positions . . . are typically for controlled tours of 3 years for a domestic assignment and 1 year for an overseas assignment”).

The Solicitation contemplated that the evaluators would rely on their personal experience. See AR 109. Nonetheless, the court cannot accept defendant’s circular argument that, as long as the TEP relied on its members’ experience, the application of the assumption to determine the duration of service was reasonable because the presumption of regularity enshrouds the statement that they relied on their experience. One assumes that this means that, if a government evaluator can rely on his experience and the agency asserts that he, indeed, did so, a protester cannot challenge whether the tool was rationally applied to the determination, or else the protester would be heard to question the evaluator’s probity. The court trusts that no time need be spent on this argument, as it is self-discrediting.

The precise lengths of the tours of duty that Messrs. Fontanez and Garza served are objective facts. To determine those facts, the TEP employed the three-year/one-year assumption. At first blush this approach appears rational, given that the assumption purports to be based on typical overseas and domestic tours of duty that can be considered reasonable. However, plaintiff has cited almost 700 pages of Army regulations in support of its contention that the assumption upon which the TEP relied is irrational because the duration of assignments is not a matter that lends itself to relative assumptions.

Various regulations prescribe durations for assignments that contradict or challenge the three-year/one-year assumption employed by the TEP. See Army Reg. 614-30, Overseas Service: Assignments, Details, & Transfers, ¶ 3-3.a.–c. (Apr. 14, 2010) (“Army Reg. 614- 30”); Army Reg. 600-20, Army Command Policy: Personnel—General, ¶ 2-3.d. (Apr. 29, 1988) (“Army Reg. 600-20”); Army Reg. 614-100, ¶¶ 5-1.c.(2)-(3), 5-3, 5-4; Army Reg. 614- 5, Stabilization of Tours: Assignments, Details, & Transfers, ¶¶ 2-1, 2-3 (May 1, 1983) (“Army Reg. 614-5”). While Army Reg. 614-100, ¶ 5-1.c.(2) provides that “[t]he CONUS [“Continental United States”] tour objective is a minimum of 36 months on station,” Army Reg. 614-100, ¶ 5-1.c.(2), this provision cannot be read in a vacuum. Paragraph 5-3. of that same regulation sets forth twenty-eight exceptions that will alter the thirty-six-month objective for domestic assignments. See id. ¶ 5-3. Additionally, paragraph 5-4. states that one assigned to an overseas tour will remain in that assignment for the period prescribed by the tour, which requires reference to Army Reg. 614-30—the regulation that implemented Department of Defense Directive (“DODD”) 1315.7. See id. ¶ 5-4.

In establishing the duration of overseas assignments, DODD 1315.7 considers the location of the assignment and whether personnel will be accompanied or unaccompanied by dependents and immediate family members. See DODD 1315.7, ¶ 5.1.1., Enc. E3 (Jan. 9, 1987). Enclosure 3, which sets forth the tour durations by country, indicates that overseas tours to Panama, Honduras, Kuwait, and Korea—the overseas locations in which Messrs. Fontanez and Garza served—are for periods exceeding one year, unless the individual is traveling unaccompanied, and even then, assignments in Panama and Honduras were for eighteen months. See id. at E3. This would suggest that the TEP’s analysis applied the minimum tour duration—and thus a conservative estimate for overseas tours only—in determining the length of time served. Yet, durations of overseas tours are subject to exceptions in the same manner as domestic tours. One-year assignments may be curtailed for a number of reasons and are considered on a case-by-case basis. See Army Reg. 614-30, Overseas Service: Assignments, Details, & Transfers, ¶¶ 3-3.g., 3-7., 5-1.a. (Apr. 14, 2010) (“Army Reg. 614-30”). 8/ Although the Army has goals for the durations of domestic and overseas tours, the assumption that the goals equate to typical tours of duty that can be applied to determine the duration of service in which an individual discharged particular responsibilities is irrational.

Defendant hastens to point out that the TEP evaluators should have been satisfied with the résumés’ claims of twenty-five and nineteen years of program-management experience that were listed, respectively, for Messrs. Fontanez and Garza. See Def.’s Br. filed Mar. 16, 2012, at 13-14. Even the TEP was not satisfied with that blanket assertion. The fact that the evaluators proceeded to apply typical durations for domestic and overseas tours of duty to determine a total for each of the two requirements (program management and aviation management) is not consistent with defendant’s argument that the résumés, as submitted, were fully compliant with the Solicitation’s requirements.

The Solicitation did not contemplate that the TEP would be required to assign a duration, based on its members’ experience, to qualifying positions. To the contrary, the Solicitation directs offerors to supply information that would allow qualifying service to be associated with its duration. The TEP members’ drawing on their experience to evaluate offerors is not in itself problematic because the Solicitation permitted the evaluators to do so. See id. at 109. It is not inappropriate to generate an assumption based on a tour objective or goal, and the court is not suggesting that the three-year/one-year assumption is irrational; however, when an assumption is applied to a particular individual and used to determine the number of years that the individual served when a specific number of years is required to qualify for a position, the application of the assumption may be irrational.

The three-year/one-year assumption derived from the three TEP members’ general experience with military policy that identified objectives for the duration of domestic and overseas tours of duty. Although the assumption itself may have a rational basis, it cannot be applied to specific individuals, given the multitude of exceptions to the stated goals. The court holds that the TEP cannot act irrationally in determining that intervenor’s proposal met the black-and-white minimum requirements of the Solicitation.

Certainly, the TEP’s application of its three-year/one-year assumption was central to its conclusion that intervenor’s proposal was technically acceptable. The evaluators rejected intervenor’s aggregate statement of years in service and proceeded to use an assumption that could not yield a rational result. Although intervenor claimed that Messrs. Fontanez and Garza had twenty-five and nineteen years of experience, respectively, the TEP disagreed, finding that Mr. Fontanez had eight-and-one-half years of experience and Mr. Garza had seven. See Richardson Decl. ¶¶ 7-8. Five of Mr. Fontanez’s qualifying years were from positions for which his résumé did not provide dates of service. See id. ¶ 7. The same is true for six of Mr. Garza’s qualifying years. See id. ¶ 8. This is telling. If the TEP had not applied its assumption to intervenor’s proposed résumés, Messrs. Fontanez and Garza would not have satisfied the Solicitation’s requirements because their résumés “clearly demonstrate,” AR 102, only three-and-one-half years and one year of program-management experience, respectively. Having applied an assumption about the length of a typical tour of duty to enable a proposal to satisfy this Solicitation’s requirements, the TEP acted irrationally. Its conclusion that intervenor’s proposal was technically acceptable “is so implausible that it [can]not be ascribed to a difference in view or the product of agency expertise.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (citation omitted) (internal quotation marks omitted). Accordingly, the agency’s determination is found to lack a rational basis.

The court arrives at this conclusion without reference to the subjective judgments that the evaluators made to determine which résumé positions constituted program-management experience. Such determinations, based on the experience of the TEP members, are precisely what was contemplated by the Solicitation. See AR 109. The court does not presume to substitute its judgment for that of the TEP, and it has not undertaken to do so. See E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996) (“[T]he minutiae of the> procurement process in such matters as technical ratings . . . involve discretionary determinations of procurement officials that a court will not second guess.”). Nor does the court rely on the opinions of Generals Sottak and Dailey. Those declarations were disallowed to the extent that they stated that rank is correlative to responsibility, thereby indicating that the only way to determine if a position entailed program-management experience was to consider the individual’s military rank. See Order entered Mar. 19, 2012, at 5. Thus, the court has not considered whether the TEP’s assessment of responsibilities was belied by the ranks associated therewith. See InGenesis, Inc. v. United States, No. 11- 754C, 2012 WL 991943, at *7 (Fed. Cl. Mar. 23, 2012) (explaining that Court of Federal Claims engages in “very limited review” and does not review the contracting officer’s efforts de novo).  (Contracting, Consulting, Engineering, LLC v. U. S. and DYNCORP International, LLC, No. 12-97C, April 16, 2012)  (pdf)


Plaintiff’s banner claim is that the EPA relied upon an unstated evaluation criterion in rating the proposals here. It is “hornbook law that agencies must evaluate proposals and make awards based on the criteria stated in the solicitation.” Banknote Corp., 56 Fed. Cl. at 386; see also PGBA, LLC v. United States, 60 Fed. Cl. 196, 207 (2004), aff’d, 389 F.3d 1219 (Fed. Cir. 2004). This requirement is firmly rooted in the Competition in Contracting Act (CICA), which indicates that an agency shall evaluate competitive proposals and assess their qualities based solely on the factors and subfactors specified in the solicitation. See 10 U.S.C. §§ 2305(a)(2)(A), 2305(a)(3)(A); 48 C.F.R. § 15.305(a). It thus is beyond peradventure that the government may not rely upon undisclosed evaluation criteria in evaluating proposals, Acra, Inc. v. United States, 44 Fed. Cl. 288, 293 (1999), and, where appropriate, must disclose the factor’s relative importance, Isratex, Inc. v. United States, 25 Cl. Ct. 223, 230 (1992). See also Banknote, 56 Fed. Cl. at 386; Cube Corp. v. United States, 46 Fed. Cl. 368, 377 (2000); Dubinsky v. United States, 43 Fed. Cl. 243, 266 (1999).

That said, an agency still has “great discretion in determining the scope of an evaluation factor.” Forestry Surveys and Data v. United States, 44 Fed. Cl. 493, 499 (1999) (citing John Cibinic Jr. & Ralph C. Nash Jr. (Cibinic & Nash), Formation of Government Contracts 830 (3rd ed. 1998)). In particular, “it is well-settled that ‘a solicitation need not identify each element to be considered by the agency during the course of the evaluation where such element is intrinsic to the stated factors.’” Banknote Corp., 56 Fed. Cl. at 387 (quoting Analytical & Research Tech., Inc. v. United States, 39 Fed. Cl. 34, 45 (1997)); see also Academy Facilities Mgmt. v. United States, 2009 WL 1808445 at * 31 (Fed. Cl. June 5, 2009); OTI Am., Inc. v. United States, 73 Fed. Cl. 758, 773 (2006); Comprehensive Health Servs., Inc. v. United States, 70 Fed. Cl. 700, 724 (2006). Hewing to these precedents, to prevail on an argument that an agency used an unstated evaluation criterion, a protester must show that: (i) “the procuring agency used a significantly different basis in evaluating the proposals than was disclosed; and (ii) the protester was prejudiced as a result – that it had a substantial chance to receive the contract award but for that error.” Banknote Corp., 56 Fed. Cl. at 387.8 Plaintiff has failed on both counts.

Contrary to plaintiff’s claims, it is readily apparent, in looking at the RFP as a whole, that metropolitan presence would be weighed in considering the merits of a technical proposal. First, as plaintiff admits, the RFP singled out, by name, nine large metropolitan areas in which the response time had to be no more than four hours. The RFP required that offerors demonstrate how these response times would be met, requiring them to include, in their technical proposals, charts and maps that revealed the location of their personnel. The combination of these requirements reasonably should have alerted the offerors to the agency’s intention to consider metropolitan presence in rating an offeror’s technical proposal. See Maintenance Eng’s v. United States, 50 Fed. Cl. 399, 416 (2001); see also Cibinic & Nash, supra at 830 (“[w]hen weighing the merits of a proposal under a specific evaluation factor, an agency ‘may consider all matters that offerors would reasonably have believed to be within the scope of the factor.’” (citations omitted)). Indeed, despite its contentions to the contrary, NEQ’s own proposal included a chart that listed the types of personnel available “[w]ithin 4 Hours of Response Cities” and a map that highlighted with yellow dots the nine “SOW locations” and used various other graphics to depict how its offices intersected these locations. Ironically, then, it appears that plaintiff well understood that which it claims was incomprehensible, to wit, that, under the RFP, it was important to have a metropolitan presence in or near the nine cities specifically enumerated in the SOW.

Moreover, despite plaintiff’s claims to the contrary, it was also reasonably apparent from the RFP that those who had a greater metropolitan presence and could offer quicker response times than the minimums specified would receive higher ratings. In the segment describing its rating system, the RFP plainly disclosed that proposals that reflected “the possibility of more than adequate performance” would be rated higher. That is exactly how the agency rated the Response Network subfactor. And there is no indication that this application of the rating system was arbitrary or capricious. See PGBA, 60 Fed. Cl. at 210 (“consideration of commitments to exceed minimum requirements by providing additional benefit to the government lies at the heart of the [exceptional] rating”); Banknote Corp., 56 Fed. Cl. at 387 (no undisclosed evaluation factor where higher rating attributable to offeror exceeding requirements).

That EPA would focus on metropolitan presence in evaluating and rating the proposals thus was plainly revealed in the RFP. And even were there room for debate on that count, there can be no bandying that an evaluator seeking the quickest response times for emergencies in large cities could be expected to review the responders’ proximity thereto. At the least, then, the latter consideration was intrinsic to the stated evaluation factors – which is enough to satisfy the disclosure requirements of the FAR. See Comprehensive Health Serv., 70 Fed. Cl. at 724 (agency need not identify each element intrinsic to an announced evaluation factor); Gulf Group, 56 Fed. Cl. at 398 (same). In short, for one reason or another, the agency’s focus on metropolitan presence did not amount to the use of an unstated evaluation factor.

To cinch matters, NEQ has failed to explain, in even the most general detail, how it would have changed its proposal had it “understood” that proximity to metropolitan areas was relevant and important. Plaintiff, of course, unhesitatingly claims that had it understood this, it would have stationed personnel in the various cities in which it lacked a metropolitan presence or  bolstered its personnel in the cities where it had a limited presence. And it would have done so, plaintiff asseverates, even if that meant charging a higher price, provided the end result was obtaining an award here. But, of course, the aplomb with which plaintiff makes these representations comes from perfect 20-20 hindsight. In fact, plaintiff had no way of knowing how its price compared to that of its competitors at the time it was formulating its staffing proposal and thus no way to know what effect increasing its price would have. Without that knowledge, there is no reason to believe that, had the importance of metropolitan presence been highlighted more in the RFP – at least to the extent that would satisfy plaintiff – NEQ would have submitted anything significantly different in terms of a staffing plan. And that leaves it illpositioned to argue now that it was prejudiced by an unstated evaluation factor – a factor, of course, that the court believes was quite explicit.

Nor is there any indication that defendant acted in an arbitrary and capricious fashion either in adopting metropolitan presence as a criterion or in evaluating the proposals in this regard. Plaintiff’s criticisms are considerably overblown and, at times, rely upon factual premises that are not borne out by the record. For example, plaintiff contends that it was irrational for EPA to favor having emergency responders located near large metropolitan areas because of the possibility that emergencies at those locations would impact the responders. But, this is far from apparent. And, at any rate, EPA had a different view, believing that such proximity translated into quicker response times and that quicker response times meant – in the words of the source selection documents – “less impact on human health and the environment.” While plaintiff might disagree, it requires more than its disagreement to demonstrate arbitrariness. See Che Consulting, Inc. v. United States, 74 Fed. Cl. 742, 747 (2006) (“An agency’s determination of the ‘best method of accommodating’ its needs . . . falls within the agency’s discretion.” (quoting United Enter. & Assocs. v. United States, 70 Fed. Cl. 1, 26 (2006)); see also Wit Assocs., Inc. v. United States, 62 Fed. Cl. 657, 662 (2004). Likewise off the mark is plaintiff’s claim that the EPA arbitrarily gave L-K credit for having a metropolitan presence in cities in which it had insufficient staffing. In fact, as the chart contained in the third source selection document well illustrates, for the three cities in which L-K was deemed to have an advantage over its competitors – Minneapolis, East St. Louis and Columbus – it had 48, 103 and 53 personnel available, respectively.9 These numbers hardly reflect skeletal staffing levels. While plaintiff again vigorously disagrees with the agency’s assessment of the adequacy of these resources, “[s]uch naked claims,” this court has oft-stated, “by all appearances unsupported by anything in the record, fall far short of meeting the heavy burden of demonstrating that these findings were the product of an irrational process and hence arbitrary and capricious.” JWK Int’l, 52 Fed. Cl. at 660; see also EP Prod’ns, 63 Fed. Cl. at 226; Banknote Corp., 56 Fed. Cl. at 384. Again, the court finds no shred of an error here.  (NEQ, LLC, v. U. S. and Lata Kemron Remediation LLC, No. 09-125C, August 10, 2009)  (pdf)


In sum, the Navy provided no “coherent and reasonable explanation of its exercise of discretion” to abandon or waive the size requirements specified in the Solicitation without informing all offerors of that decision. See Impresa, 238 F.3d at 1333; In re Universal Yacht Services, 2001 WL 360402, *3. For these reasons, the court has determined that the Navy’s rating of American Marine to be “Acceptable” on a technical basis was a clear error of judgment and an abuse of discretion. (NaplesTacht.com, Inc., v. U. S., No. 04-252C, Filed under seal on April 14, 2004, Filed April 26, 2004) (pdf)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
NEQ, LLC, v. U. S. and Lata Kemron Remediation LLC, No. 09-125C, August 10, 2009  (pdf) Contracting, Consulting, Engineering, LLC v. U. S. and DYNCORP International, LLC, No. 12-97C, April 16, 2012  (pdf)
  NaplesTacht.com, Inc., v. U. S., No. 04-252C, Filed under seal on April 14, 2004, Filed April 26, 2004 (pdf)
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