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Negotiated acquisitions.

DFARS Transformation

As part of the DFARS transformation, the DOD proposed amending changes that would delete unnecessary text, and relocate guidance on source selection to the new PG1. (268) Most of the language that would remain in the DFARS deals with the evaluation of small businesses. (269) A source selection plan would still be mandatory for high-dollar value acquisitions. (270)

Air Force Memo on Communications with Industry

The Air Force Chief of Staff and Acting Secretary issued a joint memorandum stating that communications must be strictly controlled through the Source Selection Authority (SSA) once the source selection begins (i.e. the release of the RFP). (271) The memorandum highlighted that while interaction with industry should be encouraged, all interactions with potential offerors should be recorded and all efforts should be made to keep a fair competitive advantage for all offerors. (272)

Air Force Memo on Cost/Price Risk Ratings

The Assistant Secretary of the Air Force (Acquisition) issued a memorandum that cautioned against "overly optimistic or unrealistic cost proposals." (273) The memorandum contained guidance that cost risk ratings should be given to evaluate offeror's cost proposals in light of the government probable cost estimates. (274) The Air Force subsequently made cost realism risk assessments mandatory for Acquisition Category programs whose source selection plans are approved after 1 March 2005. (275)

Fixing the Unbroken RFP

Echoing a protest in last year's Year in Review, (276) the GAO sustained a protest concerning an agency's attempt to fix an error by canceling a RFP, holding that an agency can take such an action only if there is a prior showing of prejudice against either the government or the integrity of the performance system. (277) In Rand & Jones Enterprises Company, the Department of Veterans Affairs (VA) issued a RFP for the expansion of a medical center in Northport, New York. (278) The VA indicated it would award based on the best value; however, the RFP did not identify technical or non-price related evaluation factors. (279) After amending the RFP, the VA received four revised proposals, publicly opened them, and disclosed all four prices in violation of the rule that only the awardee's price may be released, and only after award. (280)

Following an unresolved Section 8(a) protest, (281) the contracting officer decided to cancel the RFP due to the failure to identify technical evaluation factors and informed the four offerors that the agency would issue an IFB instead. (282) Rand & Jones, which had the lowest bid and would have received the contract if the RFP had been conducted as a lowest price, technically-acceptable procurement, protested the decision to cancel the RFP. The GAO agreed with Rand & Jones, holding that the VA failed to argue either a reasonable basis to cancel the RFP or a reasonable possibility that a decision not to cancel would be prejudicial to the government or the integrity of the procurement system. (283) Without such a reason, the potential winning offeror would be the prejudiced one, and the decision to cancel the RFP could not stand. (284)

In a GSA case, the GAO also sustained a protest against a decision to cancel a solicitation for offers (SFO) in Greenleef Construction, Inc. (285) The GSA issued a small-business set-aside SFO requesting bids (286) for construction and asbestos work. (287) The GSA requested that interested firms submit discounts from listed line item estimates and explained that the GSA would compute the lowest total evaluated bid price through a formula. (288) Although Greenleef bid the largest discounts, the GSA awarded the contract to another company and Greenleef subsequently filed a protest. (289) Prior to the due date for the agency report, GSA indicated that it would take corrective action and resolicit offers based on alleged confusion in the SFO concerning whether the award would be made on "percentages" or "price." The GAO agreed with Greenleef, holding that the GSA failed to show a "reasonable basis" for the cancellation and was unable to show why the different methodologies mattered. (290) Under the GAO's analysis of either methodology, Greenleef was the lowest-price offeror and should have received the contract award. (291)

In an example of an appropriate decision to cancel a RFP, one can look at VSE Corporation. (292) This case dealt with a RFP from the Bureau of Customs and Border Protection (CBP) of the Department of Homeland Security (DHS) for the storage, maintenance, and disposition services to handle personal property seized by various federal agencies. (293) In a troubled procurement, (294) the CBP cancelled the RFP, approximately five years after it was first issued, over concerns about improper bundling and the expansion of the contract due to the CBP's increased workload as a result of the DHS reorganization.

The GAO found that the agency had a reasonable basis to cancel the RFP, to include the reduced scope of work and the removal of a requirement for the contractor to provide a storage facility. (295) The GAO also found that it was reasonable to assume that other contractors may be interested in the RFP given the passage of time since the original solicitation.

Therefore, it was not reasonable merely to amend the RFP given the substantial difference from the needs of the CBP at this time compared with the original requirements. (296)

Cooperativa II--The Revised Sequel

The GAO provided guidance on an agency's attempt to limit the scope of revised proposals in Cooperativa Muratori Riuniti. (297) After a successful GAO protest by CMR, (298) the Department of the Navy implemented corrective action by amending the RFP for the construction of two facilities in Aviano AFB, Italy, and requesting revised proposals for reevaluation of the factors that the GAO found were evaluated improperly. (299) The GAO did not address one technical evaluation factor, "schedule," and the Navy notified the offerors that changes to that factor would not be accepted. (300) Since the time periods for exercise of options were being changed, price proposal revisions were being allowed, even though this factor was not in dispute. (301)

Cooperativa Muratori Riuniti first argued that the Navy should have implemented the corrective action strictly in accordance with the GAO's recommendation. (302) The GAO disagreed, stating that the parameters of a corrective action are within agency's discretion. (303) The GAO's sole criterion for corrective actions is that it must remedy the identified procurement impropriety. (304)

Cooperativa Muratori Riuniti then challenged the limitation of revised proposals. (305) The GAO first stated the general rule that an agency may limit revisions to revised proposals. (306) In this case, however, the GAO sustained the protest because the Navy failed to argue that the competitive process would be impaired by allowing offerors to completely revise their proposals. (307) The GAO found that in order to limit revised proposals following an amended RFP, the agency must argue that the amendment could not reasonably have any effect on other aspects of the proposal, or that revisions would have a detrimental impact on the competitive process. (308) The GAO agreed with Cooperativa Muratori Riuniti that changing the exercise of options may affect schedules, or at the very least, schedule-related matters, such as subcontractor availability. (309) In addition, since the Navy allowed price revisions, offerors should be allowed to revise technical aspects that may affect price. (310)

In Northrop Grumman Information Technology, (311) the GAO found that an agency must amend a solicitation if a change in circumstances materially affects the potential for an option exercise. (312) The Department of the Treasury issued a RFP to replace its telecommunications network. The RFP contemplated a best-value award of a predominantly fixed-price contract with a base period of three years with seven option years. (313)

The Department of Treasury decided to award the contract, without discussions, to AT&T. The day before award, the Department of Treasury signed a MOU (314) with various government agencies agreeing to conduct, at the end of the base period of the Department of Treasury contract, a "best value" analysis with the GSA to decide whether the Department of Treasury would transition to GSA's new network. (315) Northrop Grumman and others protested the failure to amend the solicitation after the decision was made to sign the MOU. (316)

The GAO sustained the protest, stating the general rule that when an agency's requirements change, the agency must issue an amendment to notify offerors of the changed requirements and afford them an opportunity to respond. (317) The GAO felt that the terms of the MOU made it less likely that the Department of Treasury would exercise the options under the contract. (318) First, the MOU took the decision out of the hands of the Department of Treasury's contracting officer. Second, in an apparent concession to the GSA, the MOU's best value analysis did not take into account transition costs, which the Treasury felt was the most important factor in its RFP. (319) The GAO felt that offerors should know of this development, in order to adjust their proposed prices accordingly. (320)


Discussions Equals More Creative Information

The GAO clarified its definition of meaningful discussions in Creative Information Technology, Inc. (321) The Army issued a RFP for information management and technology support services to the Information Management Support Center. (322) The solicitation sought performance-based solutions to the requirements laid out in the Performance Work Statement. (323) The RFP divided the requirement into six lots; Lot V, the lot under protest, dealt with "strategic analysis" and was set aside for Section 8(a) small businesses. (324)

The Army asked offerors to estimate hours for full-time-equivalent (FTE) employees assuming all tasks were awarded to the offeror. (325) Creative Information Technology's total price in its initial proposal was around $1 10 million, or about eight times the Army's unreleased independent government cost estimate (IGCE). (326) The Army included Creative Information Technology in its competitive range and informed the company during discussions that its price was overstated. Creative Information. Technology's revised price was around $89 million. (327) Creative Information Technology submitted a protest after the Army failed to select it for award. (328) After a corrective action, (329) Creative Information Technology resubmitted a protest to the GAO.

The general rule is that discussions must be meaningful, which means that agencies must inform offerors of "weaknesses, excesses or deficiencies in its proposal, the correction of which would be necessary for the offeror to have a reasonable chance (of award)." (330) The GAO also noted that an agency does not have to tell offerors of a high price, unless the belief is that the price is unreasonable. (331) The GAO felt that it was unreasonable to expect that Creative Information Technology could have understood the magnitude of the price disparity based on the Army's discussions. (332) The key to the GAO was that the fundamental problem was not pricing, but an underlying cause: a failure to understand the staffing levels required by the Army. (333) The GAO recommended that the Army reopen discussions and conduct a new source selection decision. (334)


In Front Line Apparel Group (FLAG), (335) the GAO sustained a protest by clarifying the limits of a second round of discussions through the "disparate treatment" test. (336) The Defense Logistics Agency issued a RFP for Army combat uniforms that contemplated multiple ID/IQ contracts. (337) The Army established a competitive range, conducted discussions, reduced the competitive range, and requested final proposal revisions (FPRs). (338) Prior to the last request, the Army issued two discussion letters reopening discussions. (339)

Although the GAO stated the general rule that it is permissible for agencies to conduct additional discussions relating to previously-discussed issues with a limited number of offerors where the agency had remaining concerns, the GAO sustained the protest because of disparate treatment. (340) In this case, the GAO seemed to focus on the fact that the Army had finished evaluations and reduced the competitive range prior to the request for FPRs (i.e. there were no "remaining concerns"). (341) Following the additional discussions, the agency upgraded the overall rating of one offeror who did not submit a timely reply and clarified its source selection decision by distinguishing another offeror's proposal from FLAG's. (342) Because FLAG, unlike the other offerors, did not receive a second "bite at the apple," the GAO sustained its protest. (343)

The Riddle of the Spherix

In Spherix, Inc., (344) the GAO stressed that for discussions to be meaningful, an agency must discuss any aspect of an offeror's proposal that will be classified as a "significant weakness." (345) Spherix involved a competition between incumbents for a consolidated reservations system for all federal parks, recreation facilities, and activities. (346) The Forest Service ultimately awarded the contract to ReserveAmerica, citing ReserveAmerica's superior non-price advantages over Spherix's substantially lower price. (347)

The GAO sustained Spherix's protest, finding that the Forest Service failed to conduct meaningful discussions with Spherix concerning areas that were judged to be significant weaknesses in the source selection document. (348) The GAO found that the agency failed to adequately justify its evaluation in the source selection documents. (349) The GAO noted that the Forest Service gave credit to the awardee for providing greater detail in its proposed staffing that went beyond the requirements of the RFP. (350) The GAO also took umbrage with the Forest Service's attempts to "dollarize" proposed strengths in two areas, noting that while not required, if an agency attempted to quantify strengths, it must compare offerors equally. (351)

And the HITS Keep Coming!

The GAO provided more guidance on discussions in the context of a corrective action in Lockheed Martin Simulation, Training & Support. (352) In a troubled acquisition by the HUD, (353) the GAO examined an amended RFP for the HUD Information Technology Solution (HITS) for all the agency's information technology requirements. (354) Lockheed Martin protested the award to Electronic Data Systems (EDS) arguing that the HUD failed to adequately discuss Lockheed Martin's weaknesses, (355) challenging the agency's communications with EDS, and alleging that EDS improperly revised its proposal following those communications. (356)

The HUD allowed limited revisions to final proposals and did not conduct discussions with either offeror. (357) The GAO focused on six weaknesses of Lockheed Martin's original proposal that the source selection document stated were important in the best value analysis of the award decision. (358) Unfortunately for the agency, those weaknesses were not identified in the technical evaluation report, and were not the subject of previous discussions. (359) Given those facts, the GAO sustained the protest holding the agency must discuss any weaknesses that were determining factors for the best value award absent a "clear showing by the agency that (the weaknesses) were not significant." (360)

The GAO sustained another aspect of the proposal in a heavily redacted section (361) holding that EDS improperly revised its proposal following HUD's communications regarding its proposal. (362) Interestingly, the GAO sustained the protest despite a finding that the HUD failed to understand that EDS had changed its proposal. (363) It seems that the best approach would be to err on the side of caution and conduct discussions in lengthy procurements, particularly when there are several amendments to the RFP. (364)

Corrective Actions

Incorrective Action

In Gulf Copper Ship Repair, Inc., (365) the GAO nullified a corrective action that resolved one issue with an awardee while ignoring another known problem with the protestor. (366) The Navy issued a RFP for two cost-plus-incentive-fee contracts over a five-year period for material, services, and facilities to perform maintenance and repairs on fourteen mine countermeasures and coastal minehunter class ships. (367) After the Navy awarded the contract to Anteon and another company, Gulf Copper submitted a protest, disputing the Navy's evaluation process based on Gulf Copper's erroneous assumption that it must use current forward pricing rate agreement rates in preparing its cost proposal; and challenging Anteon's past performance rating, based on the history of Anteon's corporate predecessor. (368)

The Navy informed the GAO that it would take corrective action. (369) The Navy conducted a thorough review of the Anteon's prior history, to include requesting and receiving six pages of data regarding the old contract. (370) Upon review, the Navy upheld the previous past performance rating and awarded the contract again to the two original awardees. (371)

The GAO sustained Gulf Copper's protest calling the Navy's action an improper discussion. (372) The GAO found that when the Navy decided to conduct discussions with Anteon about its past performance during the corrective action, it should have discussed Gulf Copper's apparent misunderstanding of the RFP requirements. (373) The GAO went further to state that the Navy's corrective action would have been considered improper even if classified as a "clarification." (374)

Correct-ive Action

In Consolidated Engineering Services, Inc., (375) the GAO upheld a corrective action that limited changes offerors could make to their proposals. The National Archives and Records Administration (NARA) issued a RFP to provide all program management, engineering, and services required to operate and maintain the archives in Washington, D.C., and College Park, Maryland. (376) After the award of the contract, Consolidated Engineers submitted a protest. (377) Following a GAO alternative dispute resolution session, the agency undertook corrective action regarding the issue highlighted in the session--reevaluating its past performance evaluations. (378) Subsequent to this action, Consolidated Engineers requested the agency reopen discussions concerning various issues raised in NARA's debriefing with the contractor. (379) In response, the contracting officer reopened limited discussions on only two areas, key personnel and key subcontractor information, and accepted changes only on those limited issues. The contracting officer did not allow price revisions of proposals (380)

The GAO disagreed with Consolidated Engineer's argument that NARA's corrective action went beyond the GAO's recommendation, and therefore, NARA should allow all offerors to submit unlimited revised proposals. (381) The general rule is that the contours of a corrective action are within the discretion of the contracting officer. (382) Reviewing the corrective action, the GAO agreed that the agency's decision to request additional information in disputed areas was reasonable, even though those areas were not in the scope of the issues highlighted in the ADR session. (383) The GAO noted, with approval, NARA's concern with allowing new price proposals after the awardee's price was revealed following the original award of the contract. (384)

Price Proposal Is Not Quite Right

In another corrective action case, Resource Consultants, Inc., (385) the GAO sustained a protest against an offeror whose revised price proposal effectively altered its technical proposal in violation of the agency's guidelines for the corrective action. (386) The Army, in LOT I of the same RFP as the Creative Information Technology case, (387) contemplated a single-award ID/IQ contract for desktop support services for a base period of two years, plus five one-year options. (388) Offerors were required to submit five discrete components of price for the expected work. (389) The Army initially awarded the contract to Resource Consultants; however, after an agency-level and GAO protest, the Army took corrective action by lowering the expected users for the contract, (390) and requesting only revised price proposals. (391)

Following corrective action, the Army awarded the contract to Titan, which although rated the same as Resource Consultants, submitted a lower price in its revised proposal. (392) In its review of Resource Consultants's protest, the GAO focused on Titan's shift from using a greater proportion of higher-priced labor categories to proposing more lower-priced categories. (393) Titan also changed its off-site prices by reducing the expected staffing for off-site work. (394) Ultimately, although no offerors were allowed to submit revised technical proposals, the price proposals materially altered Titan's approach. (395) Therefore, the GAO sustained the protest since offerors were not allowed to compete on a common basis. (396)


The Value of More Betterments

The GAO sustained a protest due to the Source Selection Authority's (SSA's) failure to evaluate proposals in accordance with the RFP evaluation factors in ProTech Corporation. (397) The U.S. Army Corps of Engineers (COE) issued a RFP for the award of a fixed-price contract for construction services of sixty-two new military family housing units. (398) The RFP stated that award would be made on a "best value" basis with the following evaluation factors: project management plan, experience, past performance, betterments, and price. Project management was the most important factor and was given twice the weight as the other factors. The other technical factors were equal in importance to each other and price was equal to the other technical factors combined. (399) Betterments was a non-mandatory CLIN that became part of the contract once offered: the RFP stated that, "[m]ore betterments will be considered more favorably than fewer betterments." (400) The COE awarded the contract to Atherton who proposed a higher price but did not offer any betterments. ProTech, a small business, offered a lower price and six betterments. (401) ProTech protested the award on various grounds, to include the SSA's evaluation.

The GAO sustained the protest based on the SSA's failure to follow the dictates of the RFP. (402) Although ProTech received a higher rating in betterments, the SSA discounted the rating, declaring that betterments was, "the fourth, and least most important factor." (403) The SSA also incorrectly stated in the source selection decision that the evaluation factors were listed in descending order of importance. (404) The GAO felt that the SSA's failure to apply the correct weights to the evaluation factors required a new source selection decision. (405)

In CW Government Travel, Inc., (406) the GAO rejected the Army's non-binding price evaluation scheme stating that the statutory requirement to evaluate price in every RFP requires some attempt to reasonably evaluate cost to the government. (407) The Army issued a RFP (408) for commercial travel officer services for the Defense Travel System program. (409) In an innovative approach, the RFP required offerors to respond to two sample tasks. Offerors would only complete pricing for the sample tasks; the government would use the pricing for evaluative purposes, but any proposed pricing would not be binding. (410)

CW Government Travel challenged this framework, stating that the failure to require binding fees would preclude a meaningful evaluation of cost. (411) The Army argued that it would still conduct a price realism analysis for all proposals. (412) The Army also argued that since price was the least important factor, competition would not be hindered. (413) The GAO disagreed, finding that agencies' evaluation schemes must provide some reasonable basis for evaluating or comparing the relative costs of offerors' proposals. (414)

Apples to Apples

In Liquidity Services, Inc., (415) the GAO disapproved of the GSA's attempt to compare two close offerors by using a price evaluation scheme that effectively eliminated an unsuccessful offeror's price advantage. (416) The GSA issued a RFP for the sale of federal surplus property contemplating the award of a fixed price ID/IQ contract. (417) The GSA indicated that it would use an "integrated assessment" of price proposals using "standard financial and business analytical techniques and methodologies." (418) In a close competition, the GSA awarded the contract to Maximus, Inc., and Liquidity submitted a protest challenging the price evaluation technique. (419)

The GAO sustained the protest, focusing on the GSA's complicated analysis comparing the two different approaches in two areas: transportation and warehousing costs (both areas in which Liquidity had a decisive price advantage). (420) In the transportation area, the GSA excluded Liquidity's fixed price for hauls greater than two hundred miles under the assumption that the majority of the work would be short trips. (421) In the warehousing area, the GSA reduced Maximus's warehouse discount rate since it offered additional services not offered by Liquidity. (422) After making both adjustments, Maximus offered more favorable pricing. (423)

The GAO highlighted that the agency did not make similar types of adjustment in the other parts of its price analysis. (424) The GAO also found fault in the transportation assumption since the RFP did not have any guidance that would support the agency's exclusion of long-haul trips. (425) Since Liquidity would have had a clear advantage without the adjustment, and the GSA failed to articulate a reasonable rationale for the changes, the GAO felt that the evaluation was unreasonable. (426)

Sending Out a SOS

In SOS Interpreting, LTD., (427) the GAO sustained a protest against a source selection decision that failed to adequately support the agency's rationale in accordance with the terms of the RFP. (428) The Drug Enforcement Administration (DEA) issued a RFP for various translation, transcription, interception, and monitoring support services. (429) The solicitation stated that the DEA would award the contract on a "best value" basis with the combined weight of the technical evaluation factors more important than price. (430) The SSA awarded the contract to McNeil Technologies, Inc., although the Technical Evaluation Panel (TEP) gave SOS Interpreting the highest rating of all the offerors in the competitive range. (431)

Although the GAO acknowledged the general rule that a source selection official can reasonably disagree with evaluators' recommendations, the GAO felt that, in this case, the SSA failed to adequately state her rationale in the decision document. (432) The GAO found that the SSA converted the "best value" RFP to a Lowest Price Technically Acceptable procurement through her declaration that all proposals were technically equal and that she would award the contract to the lowest-price offeror. (433) The primary fault of the SSA's decision was her failure to document two clear advantages to SOS Interpreting's proposal. (434)

The GAO also addressed other aspects of SOS's protest. First, SOS Interpreting attacked the DEA's evaluation of risk as an unstated evaluation factor. (435) In response, the GAO noted the general rule that the consideration of risk is inherent in technical evaluations. (436) Second, McNeil Technologies failed to follow the proposal instructions regarding accounting for Service Contract Act increases in its proposed price. (437) The GAO felt that the DEA should address this issue with McNeil Technologies in order to treat all offerors the same. (438)

In Cooley/Engineered Membranes, GTA Containers, Inc., (439) the GAO sustained a protest based on an offeror's failure to propose an alternative test that met the RFP requirements. (440) The Air Force issued a RFP for two sizes of collapsible fuel containment bladders for storing aircraft fuels. (441) The RFP included a table listing approved tests for determining the bonding the seams and fittings of the bladder for proscribed strengths. (442)

The Air Force awarded the contract to MPC Containment System even though MPC used an "alternative pressurized soap bubble" test to its specialized fitting method. (443) After expert testimony, the GAO found that the alternative test would not meet the requirements of the RFP to measure

the strength of the tanks. (444) Since the offeror's proposal did not meet the RFP requirements, the Air Force could not reasonably find that MPC's proposal was technically acceptable. (445)

Price Is" Not Just a Color

The GAO underscored the importance of the statutory requirement to consider price in a RFP, particularly in an ID/IQ contract, in The MIL Corporation. (446) The Department of Commerce issued a RFP for the award of government-wide acquisition contracts to provide information technology services. (447) The agency selected twenty-four Tier II proposals, all of which received a "blue" rating. (448) The MIL Corporation received a "red" under past performance, a "blue" for price, and "green" overall; and subsequently filed a protest. (449) The protest challenged the agency's overall evaluation of price arguing that the agency relied upon a "mechanical application of a color-coded scheme." (450)

The GAO agreed, finding that the agency failed to sufficiently document the price/technical tradeoff required by the FAR. (451) Essentially, the agency only focused on those proposals that received the highest rating, "blue," for technical factors. (452) The agency failed to document why it chose proposals that received "yellow" price ratings (453) over the MIL Corporation's offer, which received a "blue" price rating. (454) The GAO specifically referenced the source selection document that indicated that price played a lesser role due to the pricing that would occur at the task order level. (455) In response, the GAO stated there was no task order exception to the statutory requirement to consider price. (456) If the agency conducted a price/technical tradeoff, it could only do so with adequate justification in the source selection document. (457)

One, Two, Five (Three, My Lord) ... Three

The GAO approved of an agency's use of fewer adjectival ratings than described in the solicitation in the evaluation of proposals in Trajen, Inc.; Maytag Aircraft Corporation. (458) The contract involved fuel receipt, storage, and issue services at the Government-Owned, Contractor Operated facilities at the Defense Fuel Support Point in Norfolk, Virginia; and aircraft refueling services for Naval Station Norfolk and the Naval Amphibious Base in Little Creek, Virginia. (459) The RFP provided that technical factors (460) would be evaluated under five ratings: exceptional, very good, satisfactory, marginal, or unsatisfactory. (461)

The technical evaluation team only used three ratings in evaluating proposals: exceptional, average, and marginal. In dismissing the protest on these grounds, (462) the GAO highlighted the general rule that evaluation ratings, however concocted, are "merely guides for intelligent decision-making in the procurement process." (463) In rejecting allegations of prejudicial impact, the GAO focused on the detailed numerical scoring of the operational capability subfactors and that the evaluation was not based solely on the three adjectives. (464) The GAO also noted the SSA's consideration of the narrative comments in the consensus evaluation to demonstrate the fairness of the source selection process. (465)

The Value of Value-Added

In Coastal Maritime Stevedoring, LLC, (466) the GAO rejected a price/technical tradeoff that focused only on the advantages in a proposal that would result in a cost savings to the government, while ignoring advantages that could not be quantified. (467) The U.S. Army Surface Deployment and Distribution Command issued a RFP for stevedore (468) and related terminal services at Blount Island Terminal in Jacksonville, Florida. (469) The RFP contemplated the award of a four-year fixed price requirements contract on a best-value basis in which non-price factors, when combined, were approximately equal in weight to price. (470) The SSA received an analysis from the program manager that identified specific strengths to Coastal's proposal which would result in a cost savings to the government. (471) The program manager, however, neglected to comment on other strengths of the proposal that did not affect the cost. (472) The SSA then selected a lower-rated, lower-price proposal. (473)

The GAO sustained the protest, holding that advantages in a technical proposal, e.g. performance risk, need not result in a cost benefit to be of value to the government. (474) The SSA's obligation in a tradeoff decision is to determine whether the advantages of a higher-price proposal are worth paying a price premium. (475) Since the SSA failed to take into account all of Coastal's strengths in the best value determination, the GAO held that the tradeoff determination was insufficiently documented. (476)

Key Personnel

Key Personnel at Sea in the GAO Find Safe Harbor in the District Court

In Patriot Contract Services--Advisory Opinion, (477) the GAO advised the United States District Court for the Northern District of California (478) that an offeror must follow the terms of a RFP concerning key personnel and a failure to do so will result in a sustained protest in an admiralty case. (479) The Navy issued a RFP for the operation and maintenance of nine large, medium speed, roll-on/roll-off ships to move cargo worldwide. (480) The Navy selected American Overseas Marine Corporation (AMSEA) over Patriot Contract Services (PCS), the incumbent, on the basis of AMSEA's lower evaluated price. (481) After award, AMSEA placed employment advertisements for port engineers. (482) Patriot Contract Services challenged the award based on AMSEA's alleged misrepresentation of its agreements with the key personnel in its proposal (483)

The GAO noted that the RFP specifically stated that letters of commitment of key personnel "must reflect mutually agreed position, salary, and benefits." (484) After contradictory testimony by AMSEA, (485) the GAO found that AMSEA had not discussed those factors with its prospective employees, rendering those discussions mere promises, rather than binding commitments as required by the RFP. (486) Based on this fact, the GAO found PCS's protest to be meritorious based on AMSEA's material misrepresentations in its proposal. (487)

The District Court, despite the GAO's advisory opinion, denied a request for preliminary judgment in Patriot Contract Services v. United States. (488) The District Court agreed that there were questions regarding AMSEA's conduct, but ultimately felt that the record was sufficiently ambiguous to reject the allegation of fraud. (489) One employee in question testified that he decided to retire subsequent to his contracts with AMSEA; the other employee testified that he left AMSEA on mutually agreeable terms. (490) The District Court also agreed with AMSEA that there was no evidence of fraud in the absence of salary discussions prior to the submission of the letters of commitments since the salary for the same job should remain the same under a new contractor. (491) The District Court finally noted that it was reasonable to assume that changes in the key personnel could take place during the time period in question. (492) One year passed between the submission of the initial bid and the date that AMSEA started substituting personnel different from its proposal. (493)

An Incumbent's Venue

Two cases demonstrate different techniques for evaluating the use of incumbents as key personnel in a proposal. In the first, AHNTECH, Inc., (494) the GAO denied a protest in which the agency classified an offeror's intent to hire staffing from the incumbent workforce as a weakness. The U.S. Army Joint Contract Command-Iraq issued a RFP for the maintenance and operation of the Butler Range Complex. (495) The Army eliminated AHNTECH from the competition after its operation plan was evaluated as a "no-go." (496) AHNTECH's operation plan included a stated intent to hire eighty-five percent of the incumbent workforce without signed letters of intent from the employees. (497)

The GAO denied the protest stating that AHNTECH could have either provided evidence that it could hire the incumbent workforce or it could have submitted an alternative approach for staffing. (498) Since it failed to do either, the agency's interpretation of staffing as a weakness was reasonable. (499)

In a COFC case, Orion International Technology v. United States, (500) the court held that the government could rely on a company's assertion that it would hire an incumbent, even if that employee subsequently signed a no-compete agreement with the incumbent contractor. (501) The Army Contracting Agency issued a RFP for the management of the Center for Counter Measures at the White Missile Range, New Mexico. (502) The RFP indicated that the proposed site manager would attend an oral presentation of the proposal. (503) Offerors were required to submit a list of key personnel. The Army selected Fiore Industries for award. (504)

Orion filed a protest primarily because of Fiore's assertion that it would hire Mr. Harold Zucconi, an employee of Orion, the incumbent contractor. (505) Fiore inserted Mr. Zucconi's name into its proposal after it reached an oral agreement with Mr. Zucconi to hire him. (506) After this oral agreement, Mr. Zucconi signed a no-compete agreement with Orion. (507)

When Mr. Zucconi informed Fiore of the no-compete agreement, Mr. Zucconi again orally stated that he would work for Fiore if the company was selected for award. (508) Mr. Zucconi subsequently accepted a position for the government as the superintendent of various projects on White Sands, to include the contract in dispute in this case. (509)

Orion argued that Fiore made a material misrepresentation when it submitted Mr. Zucconi's name in its proposal, which would disqualify Fiore from the competition under the "bait and switch" line of key personnel cases. (510) The court held that as long as Fiore believed at the time that Mr. Zucconi would work for it, then the submission of his name with its proposal did not rise to the level of misrepresentation that could invalidate the award. (511) The court felt that since the RFP did not require letters of intent, or even a permanent list of key personnel, the government could accept Fiore's representations regarding Mr. Zucconi's employment. (512) This is especially true when the government did not consider reliance on incumbent personnel as a weakness, e.g. as in the AHNTECH discussed previously. (513)

What I Tell You Three Times Is True: University I

The GAO stressed that the source selection official must disclose contrary recommendations, or at a minimum not knowingly mischaracterize that recommendation, in the source selection document or risk a sustained protest in University Research Company. (514) The Substance Abuse and Mental Health Services Administration (SAMHSA) of the Health and Human Services (HHS) issued a RFP for the operation of the SAMHSA Health Information Network. (515) The HHS Acquisition Regulation recommends that SSAs receive recommendations from project officers in addition to technical evaluation panels. (516)

During the GAO hearing, the source selection official testified that she knowingly misstated the project officers' recommendation in order to award the contract to her preferred offeror. (517) At the hearing, the source selection official for the first time disclosed an eight-hour debate between her and the project officers about their evaluation conclusions that ended with the project officers leaving in resignation concerning the SSA's ultimate decision. (518)

Although the GAO conceded the agency's point that there was no affirmative requirement for the source selection official to document any dissension by the project officers, the GAO held that the lack of any statement either discussing or distinguishing a contrary recommendation must lead to a sustained protest. (519) As the GAO states, the SSA's independence does not equate to "a grant of authority to ignore, without explanation, those who advise them on selection decisions." (520)

In a follow-up case, University Research Co. (521) the GAO reviewed another source selection official's reaward of the contract to IQ Solutions. (522) This time, the GAO found sufficient documentation contained in the source selection decision to justify the source selection's decision not to follow the advice of the project officers. (523)

In an ongoing saga, the COFC, in University Research Company v. United States & IQ Solutions, (524) granted a preliminary injunction, blocking the award of the SAMHSA clearinghouse. (525) The COFC held that the action was necessary due to an improper cost realism normalization of offeror's reproduction costs which the GAO had previously viewed as proper in University Research Company. (526)

In one area of the protest, the GAO upheld the agency's decision to normalize reproduction costs. (527) In its FPR, IQ Solutions lowered its overall proposed copying costs while significantly increasing its estimated cost per copying. (528) Based on this inconsistency, and a worry that the RFP was ambiguous regarding reproduction costs, the agency decided to replace all offerors' proposed costs with the government estimate for those costs. (529) The GAO felt that the agency reasonably determined that there should not be significant differences in copying costs. (530)

The COFC disagreed, holding that IQ Solution's apparent confusion may have justified additional clarifications by the agency, but the decision to normalize copying costs resulted in erasing URC's apparent cost advantage in this area. (531) The COFC reviewed the record and found no good reason why reproduction costs would be the same for all offerors. (532) The court also felt that it was arbitrary to use the government's estimate, when IQ Solution's marginal cost was one-third lower. (533) The COFC felt that the agency needed more time to evaluate the differences in the proposed copying costs and take the time to eliminate any confusion if necessary. (534) The court noted that [t]he public interest is not well-served when contracting officials rush to save a few weeks and end up delaying contracts by many months." (535)

What Time Is B in the COFC?

The GAO found that a lack of posted instructions on a locked door on a Saturday met the government frustration rule in Hospital Klean of Texas, Inc. (536) The Army issued a RFP for hospital housekeeping services at Fort Polk, Louisiana. (537) Following requests from potential offerors, the Army extended the closing date for proposals from Friday, May 14, to 1 p.m., Saturday, May 1 5. (538) Although Saturday was not a work day, the Army's plan was that personnel would be present assisting with a move and would listen for any deliveries. (539) One proposal was delivered on that day. (540) Integrity Management Services, which was selected for award, utilized Federal Express to deliver their proposal on May 15. Federal Express, after no one answered the locked door, left a note stating that it had attempted delivery. (541) Agency personnel found the note while leaving the building for the day. (542)

The GAO determined that the agency was the paramount cause for the late delivery. (543) The GAO determined that there was no reasonable expectation that Federal Express could redeliver the proposal since the government failed to post delivery instructions on the locked door. (544)

In Hospital Klean of Texas, Inc. v. the United States, (545) the COFC disagreed with the GAO's analysis, granting a Temporary Restraining Order blocking the award to Integrity. (546) The COFC, while recognizing the GAO's "longstanding expertise in procurement law," found that Integrity failed to do "all it could" to ensure timely delivery of the proposal. (547) The COFC also failed to find "affirmative misdirection" on the part of the agency sufficient to allow acceptance of the late proposal. (548) The COFC focused on the fault of the offeror and its agent, Federal Express. (549) First, Integrity failed to notify Federal Express of the 1 p.m. deadline. (550) Second, Federal Express failed to do anything other than knocking on a locked door once and did not attempt to redeliver its package. (551) Therefore, the government frustration rule did not apply and the Army could not accept the late proposal. (552)

Dancing the Minutiae in the COFC

In Beta Analytics International, Inc. v. United States & Maden Tech Consulting, Inc., (553) the COFC granted the protestor's motion for judgment on the administrative record by examining, in detail, each evaluator's score sheets. (554) The Navy issued a RFP for intelligence support for the Defense Advanced Research Projects Agency. (555) Beta Analytics' score for the technical evaluation process was 84; Maden Tech received an 88. (556) The Navy awarded the contract to Maden Tech on a best value analysis since it received the highest score and had the lowest price. (557)

Although there was a source selection document, the COFC declined to rely on the summary memorandum, given the mechanical nature of the source selection plan. (558) The intent of the plan was to average the evaluator's scores and then award the contract to the best value based on the technical proposal scores, past performance, and the proposed price. (559) Because the source selection authority conducted no real analysis, (560) the COFC analyzed the scores at the individual evaluator level. (561) Since there were clear inconsistencies in areas of the evaluation, (562) the COFC ruled in favor of the protestor.

Your Strength Is Also Your Weakness

The GAO sustained a protest due to an insufficient cost realism analysis in Honeywell Technology Solutions, Inc.; Wyle Laboratory, Inc. (563) The National Aeronautics and Space Administration (NASA) issued a RFP for the consolidation of test operations services at the John C. Stennis Space Center and the George C. Marshall Space Flight Center. (564) The RFP indicated that NASA would adjust the "Mission Suitability" scores for cost realism. (565) The NASA adjusted the cost of both Honeywell's and Wyle's proposals due to a failure to propose staffing equal to the agency's independent government staffing estimate. (566) Both proposals were then downgraded due to the difference between the increased probable cost and the agency's most probable cost analysis. (567)

The GAO found that the agency failed to have an adequate record in how it conducted its cost realism analysis. (568) The GAO also found an inconsistency in recognizing Honeywell's staffing level as a strength while downgrading that staffing in its cost realism analysis as inadequate. (569) The GAO highlighted the agency's thin record of how it came to that conclusion. (570) The GAO questioned why, in an attempted consolidation, the agency failed to integrate two separate staffing estimates for the two centers and appeared to use those separate estimates in a mechanical manner. (571)

OverArching Prices

In Arch Chemicals v. United States, (572) the COFC found that there was no rational basis to exclude from the Defense Energy Support Center's (DESC's) price evaluation, the incumbent's plant shutdown costs which would be triggered if the contract was awarded to another company. (573) The DESC issued a RFP for a requirements contract for all the federal government's hydrazine requirements for ten years with two five-year options. (574)

If the contract was awarded to a company other than Arch Chemicals, the DESC would pay Arch $8,513,000 in plant shutdown related costs. (575) In computing the price evaluation, the DESC decided to exclude those costs in order to foster competition. (576) The COFC rejected this argument, stating that "competition, like democracy is not an end but a means to the accomplishment of ends." (577) Since it was not speculative that those costs would be paid by the government, the COFC felt that there was no rational basis not to include these costs in the evaluation for a new contract. (578)

Late Scot?

In Scot, Inc., (579) the GAO held that an agency can accept an expired offer without reopening negotiation, as long as acceptance does not provide an unfair competitive advantage. (580) The Navy issued a RFP contemplating award of an ID/IQ contract for oxygen mask, regulator, helmet, and communications test sets. (581) The RFP stated that each offeror was required to hold its offer firm for thirty calendar days from the due date for receipt of offerors. (582) The offers expired ten days prior to award; Scot protested the award arguing that it could have submitted a lower price due to "manufacturing process redesign efforts." (583) The GAO focused on the fact that no changes were made to the winning proposal; and according to the GAO, as long as expired proposals remained unchanged, the Navy could award the contract. (584)

A Shred of Evidence

The GAO held unobjectionable the agency's actions in destroying individual evaluation sheets after the evaluators met to create a consensus rating in Joint Management & Technology Services. (585) The DOE issued a RFP for information technology and engineering support services for its National Energy Technology Laboratory. (586) Joint Management & Technology Services alleged that the consensus evaluation materials failed to provide detail enough to analyze the evaluator's conclusions. (587) The GAO held that as long as the consensus materials support the agency's judgments, there is no objection to destroying the initial ratings of individual evaluators. (588)

Joint Management & Technology Services also challenged a satisfactory rating of experience arguing that this was unreasonable since several entities in its joint venture were the incumbent contractors. (589) The GAO rejected this argument, stating that the burden is on the offeror to submit an adequately written proposal. (590) Joint Management & Technology Services failed to provide adequate evidence of its experience, especially since it was a newly formed joint venture with no experience of its own. (591)

Major Andrew S. Kantner

(268) Defense Federal Acquisition Regulation Supplement; Contracting by Negotiation, 70 Fed. Reg. 14,624 (Mar. 23, 2005) (to be codified at 48 C.F.R. pt. 215).

(269) Id. at 14,625.

(270 Id.

(271) Memorandum, Chief of Staff; Air Force and Acting Secretary of the Air Force, to ALMAJCOM-FOA/CC, subject: Communication Throughout the Source Selection Process (6 June 2005).

(272) Id.

(273) Memorandum, Assistant Secretary of the Air Force (Acquisition), to SEE DISTRIBUTION, subject: Assessment of Cost/Price Risk Ratings in Source Selections (3 Jan. 2005).

(274) Id.

(275) Mandatory Procedure; Source Selection, MP 5315-3 (Feb. 9, 2005).

(276) See 2004 Year in Review, supra note 40, at 26-27.

(277) Rand & Jones Enter. Co., Comp. Gen. B-296483, Aug. 4, 2005, 2005 CPD [paragraph] 142, at 4.

(278) Id. at 1.

(279) Id. at 2.

(280) See FAR, supra note 33, at 3.104-3(a) and 3.104-4.

(281) Arrow, which submitted the second lowest price, protested the tact that Rand & Jones graduated from the Section 8(a) program and would not be eligible for a Section 8(a) award. Unfortunately, the procurement was not set aside for small business concerns. Rand & Jones. 2005 CPD [paragraph] 142, at 2-3.

(282) Id. at 3.

(283) Id. at 3-4. The decision to cancel a RFP has a lower threshold than canceling an IFB, which requires the agency to demonstrate a "compelling reason." See FAR, supra note 33, at 4.404-1 (a)(1).

(284) Rand & Jones. 2005 CPD [paragraph] 142, at 4.

(285) Comp. Gen. B-294338, Oct. 26, 2004, 2004 CPD [paragraph] 216. The GSA defines SFO as, "(an) invitation for bids in sealed bidding or request for proposals in negotiations." U.S. GEN. SVS. ADMIN., GEN. SVS. ADMIN. ACQUISITION MANUAL subpart 570.102 (July 2004).

(286) The GAO noted that the GSA used the terms "bidder" and "offeror" interchangeably in the SFO and uses SFOs for both sealed bid and negotiated procurements. Greenleef Constr. Inc., 2004 CPD [paragraph] 216, at 2 n. I. The GAO ultimately used the negotiated acquisition standard for its conclusion. Id at 5.

(287) Id. at 2.

(288) Id. at 2-3. The formula was proportion of the work multiplied by the distribution of the work and by the sum of the percentages bid for each of the three years. Id. at 3.

(289) Id. at 4.

(290) Id. at 5.

(291) The GSA submitted flawed analyses to demonstrate that the awardee would have the lowest-price under one of the two methodologies. The GAO reviewed the data, found errors, and determined that the GSA would pay over $225 million more for the awardee. Id. at 5.

(292) Comp. Gen. B-290452.2; Apr. 11, 2005, 2005 CPD [paragraph] 111.

(293) Id. at I. The RFP contemplated the award of a cost-plus-award-fee contract for a 4-month transition period, a base period and nine 1-year options. Id. at 2.

(294) A protest after the initial award resulted in a con-ective action revising the statement of work and reopening the competition. The CBP also issued several amendments, one of which incorporated the use of a government-owned, contractor-operated facility. Id. at 3-4.

(295) Id. at 6.

(296) Id. at 7.

(297) Comp. Gen. B-294980.5, 2005 U.S. Comp. Gen. LEXIS 132 (July 27, 2005).

(298) Cooperativa Muratori Riuniti, B-294980, B-294980.5, Jan 21, 2005, 2005 CPD [paragraph] 21.

(299) The RFP was a "'best value" procurement which four equally weighted factors: price; and three technical evaluation factors, organizational experience, organizational past performance, and schedule. Cooperativa Muratori Riuniti's original protest dealt with the first two technical factors. Id. 2005 U.S. Comp. Gen. LEXIS 132, at *3.

(300) Id. at *5.

(301) Id.

(302) Id. at *8.

(303) Id. at *10.

(304) Id.

(305) Id. at "14.

(306) Id.

(307) Id. at "15-16.

(308) Id. at *15.

(309) Id.

(310) Id. at *17. Cooperativa Muratori Riuniti also challenged that the Navy conducted discussions solely with another offeror. The GAO found an absence of prejudice since CMR obtained a debriefing and then submitted a protest. The GAO also noted that the offeror did not change its proposal following the discussion. Id. at * 18. The GAO also dismissed an alleged problem in the solicitation since it was not raised in the original protest. Id. at *19.

(311) Comp. Gen. B-295526, Mar. 16, 2005, 2005 CPD [paragraph] 45.

(312) Id. at 20.

(313) The RFP contained the following evaluation factors: price, transition, technical approach, operations and management, past performance, and small business participation. The non-price factors were approximately equal to price. Transition was the most important factor; technical approach was equal to operations in management; past performance and small business participation were equal in weight and less important. I Id. at 3-4.

(314) Parties to the MOU include the Chief Information Officer for the Treasury, the Commissioner of the General Services Administration's Federal Technology Service, the Administrator of the Office of Management and Budget's (OMB) Office of Federal Procurement Policy, and the Administrator of OMB's Office of Electronic Government. Id. at 5. The MOU stated that the decision to exercise the option would be a joint decision between the GSA and the Treasury. In the event of a dispute, the OMB would make the final decision. In addition, the "'best value" focus would be according the government's interest and not just the Treasury's. Id. at 10.

(315) The GSA's network would be called the FTS-Networx telecommunications services contract. Id. at 5.

(316) Id.

(317) Id. at 13.

(318) Id.

(319) Id. at 11-12.

(320) Id. at 20. The GAO also sustained the protest on the grounds that the Treasury failed to conduct a reasonable price evaluation on AT&Ts proposal. Id. at 14-191

(321) Comp. Gen. B-293073.10, Mar. 16, 2005, 2005 CPD [paragraph]110.

(322) Id.

(323) Id. at 2.

(324) The RFP contemplated multiple awards of ID/IQ contracts for a base period of one year, plus four one-year options. Id. "Strategic analysis" was divided into "plans and policy," "technology assessment," "hardware/software testing," "research, analysis and recommendations," "information resource management," and "technical writing." Id.

(325) Id. at 3. Other assumptions included 2,080 hours per staff year for each employee; twelve hours a day, five days a week; 7,000 customers for the base period; and five percent increase in customers for each of the option year. Id.

(326) Id. at 4. Creative Information. Technology's estimate was based on thirty-seven FTEs per year across eleven labor categories; the Army's IGCE estimated around $13 million with seven FTEs.

(327) Id. at 5.

(328) The source selection official concluded that CITI's total price was "'unreasonably high." Id.

(329) The Army inadvertently used CITI's price from its initial proposal for the award decision. After reviewing CITI's revised proposal price, the Army again chose not to select CITI for award. Id. at 6.

(330) Id. at 6-7.

(331) Id. at 7.

(332) Id.

(333) Id. at 8.

(334) Id. at 9.

(335) Comp. Gen. B-295989, June 1,2005, 2005 CPD [paragraph] 116.

(336) Id. at 4.

(337) The protest involved Contract Line item Numbers (CLINs) 0011 and 0012 (trousers), which were set aside for small businesses. Id. at 1.

(338) Id. at 2.

(339) I Id.

(340) Id. at 4.

(341) Id.

(342) Id.

(343) Id.

(344) Comp. Gen. B-294572; B-294572.2, Dec. 1, 2004, 2005 CPD [paragraph] 3.

(345) Id. at 14-15.

(346) Spherix was the incumbent for the National Park Reservation Service while ReserveAmerica was the incumbent for the National Recreation Reservation Service. Id. at 2.

(347) Id. at 8.

(348) Significant weakness areas included the marketing approach, which was not discussed with the protestor; the quality control plan, not discussed because the "plan was simply weak;" and transition period staffing which were judged to be lacking in detail and therefore not discussed. Id. at 14.

(349) Id. at 13.

(350) Id. at 9. Both offerors addressed staffing in their proposals; but ReserveAmerica received credit for identifying the number of dedicated staff. The agency did not address this area with Spherix during discussions. Id at 10.

(351) Id. The Forest Service used estimated costs of Staffing for ReserveAmerica and projected Spherix's staffing using historical data from its incumbency in the smaller system. The GAO felt that it was improper to use that data for the larger consolidated requirement. M. at 10. The Forest Service also quantified ReserveAmerica's marketing plan strength. The GAO noted that the source selection document failed to take into account Spherix's plan in its proposal, relying on an incorrect briefing slide, which skewed the attempt to compare the two. Id. at 12.

(352) Comp. Gen. B-292836.80, Nov. 24, 2004, 2005 CPD [paragraph] 27.

(353) See 2004 Year in Review, supra note 40, at 35. The GAO also conducted ADR involving two pre-closing protests which resulted in the HUD amending the RFP. Lockheed Martin Simulation, Training & Support. 2005 CPD [paragraph] 27, at 2.

(354) HITS is a follow-on contract for the HUD Integrated Information Processing Service (HIIPS). Lockheed Martin was the incumbent for the HIIPS. While the first protest was pending, the agency proceeding with the award to Electronic Data System. Following litigation in the COFC, the HUD split the requirements between the two. Lockheed Martin Simulation. Training & Support, 2005 CPD [paragraph] 27, at 2.

(355) Id. at 11.

(356) Id. at 8.

(357) Id. at 4.

(358) Id. at 10-11.

(359) Id. at 10.

(360) Id. at 11.

(361) [Deleted]. Id. at 9.

(362) Id. at 8.

(363) Id.

(364) The GAO also criticized the agency's attempt to argue that a two-year old communication from the initial RFP which placed the responsibility on the offeror to make its proposal "responsive, clear and accurate" Id. at 11.

(365) Comp. Gen. B-293706.5, Sept. 10, 2004, 2005 CPD[paragraph] 108.

(366) Id at 8-9.

(367) Id. at 1.

(368) Id. at 4. Gulf Copper also made an OCI complaint which also was investigated in the Navy's corrective action. Id. at 5.

(369) Id.

(370) Id.

(371) Id. at 6.

(372) Id. at 7.

(373) Id. at 8-9.

(374) Id. at 9. "Clarifications" are limited exchanges, between the Government and offerors that may occur when award without discussions is contemplated. See FAR, supra note 33, at 15.306 (a).

(375) Comp. Gen. B-293864.2; Oct. 25, 2004, 2004 CPD [paragraph] 214.

(376) Id. at 2. The RFP contemplated the award of a fixed-price contract, with four option years, Id.

(377) Id. at 3.

(378) Id. at 2.

(379) Id. Consolidated Engineering Services requested allowing the submission of revised proposals to address facility changes, upcoming collective bargaining agreements, a revised Department of Labor wage determination and matters raised in its debriefing. Id.

(380) Id. at 3 The contracting officer made this decision based on the length of time which had passed since the submission of the proposals, Id.

(381) Id.

(382) Id.

(383) Id. at 4.

(384) Id.

(385) Comp. Gen. B-293073.3, et. al, June 2, 2004, 2005 CPD [paragraph] 131.

(386) Id. at 11.

(387) See supra notes 321-334 and accompanying text.

(388) Resource Consultants, 2005 CPD [paragraph] 131, at 2.

(389) Id.

(390) The estimate went down from 10,000 to 7,000 users. Id. at 6.

(391) Id. at 3.

(392) Id. at 5.

(393) Id. at 9.

(394) Id. at 10.

(395) Id.

(396) Id. at 7. RCI also alleged a procurement integrity violation that the GAO declined to evaluate without evidence. Id. at 11.

(397) Comp. Gen. B-294818, 2004 U.S. Comp. Gen. LEXIS 293 (Dec. 30, 2004).

(398) Id. at *1-2.

(399) Id. at *4. The RFP also contained a ten-percent price evaluation preference in favor of Historically Underutilized Business (HUB) Zone small businesses. Id.

(400) Id. It does not appear that "betterment" was a defined term in the RFP. It appears that the term meant additions to the proposal outside the scope of the RFP which improved the quality of the proposal and which would result in a higher evaluation. Id.

(401) Id. at *5.

(402) The GAO denied the protest on other grounds finding the agency's evaluation of ProTech's offer was reasonable and consistent with the RFP. Id. at *16.

(403) Id. at *8.

(404) Id. The SSA's also valued Atherton's offer of no betterments to equal sixty-three percent of ProTech's six betterments, Id.

(405) Id. at * 18.

(406) Comp. Gen. B-295530.2; B-295530.3; B-295530.4, July 25, 2005, 2005 CPD [paragraph] 139.

(407) Id. at 6.

(408) The Army would issue multiple awards of ID/IQ contracts. The base ordering period would be for two years, with three one-year options. The RFP contemplates a "best value" procurement based on the following factors, in decreasing order of importance: performance risk, technical, small business participation, and price. Non-price factors would be "significantly more important than price." Id. at 2.

(409) See infra section titled Contract Types p. 17 for a discussion of the reconsideration request of an earlier protest dealing with the guaranteed minimum amount for the ID/IQ contract.

(410) CW, 2005 CPD [paragraph]139, at 2-3.

(411) Id. at 4.

(412) Id. at 5.

(413) Id. at 6.

(414) Id. CW also challenged the proposed sample tasks arguing that the tasks were not broad enough to permit evaluation of all factors. The GAO found that the scheme reasonably related to the agency's needs, Id. at 6-7. In addition, the GAO dismissed an arguments that the RFP was vague stating that the requirement is only to provide sufficient information for offerors to compete intelligently and on equal terms, Id. at 7-8. The GAO also approved the agency's cautionary clarification that offerors must factor in risk of currency valuation into their price proposals. Id. at 8.

(415) Comp. Gen. B-294053, Aug. 18, 2004, 2005 CPD [paragraph] 130.

(416) Id. at 8.

(417) Id. at 1-2. The award would be made on a "best value" basis with the following factors: Technical Approach (forty-five percent), Related Experience (twenty percent), Past Performance (ten percent), and Price (twenty-five). Id.

(418) The GSA would evaluate spreadsheets which projected gross proceeds, net proceeds, and direct costs based on offeror's expectation on performance, Id. at 3 n.3.

(419) The GAO noted that Liquidity raised a number of other issues but that the RFP was unclear in those areas and the GSA should address those issues in its corrective action, Id. at 9.

(420) Id. at 6-7.

(421) Id. at 7.

(422) Id.

(423) Id.

(424) Id. at 8.

(425) Id.

(426) Id. at 9.

(427) Comp. Gen. B-293026, et. al, Jan. 20, 2004, 2005 CPD [paragraph] 26.

(428) Id. at 9.

(429) Id. at 2.

(430) Id. The RFP anticipated award of a fixed-price, ID/IQ contract for a base year with four one-year options for translation, transcription, interpreting, interception, and monitoring support services. The technical factors, listed in descending order of importance, were: management plan, quality control plan, and transition plan. Id.

(431) Id. at 6.

(432) Id. at 7.

(433) Id. at 9.

(434) SOS received higher ratings under two evaluation factors: quality control plan and transition plan. The GAO discounted the SSA's opinion that TEP rated SOS improperly as conclusory, Id. at 8-9.

(435) Id. at 10.

(436) Id. The GAO did recommend reevaluation of the risk factors since it appeared that the SSA used a LPTA approach to the award, Id.

(437) Id. at 11.

(438) Id. at 12. The GAO also upheld a past performance evaluation and noted with concern the source selection document's reference to SOS's agency-level protest, Id. at 10-11.

(439) Comp. Gen. B-294896.2, et. al, Jan. 21, 2005, 2005 CPD [paragraph] 22.

(440) Id. at 5.

(441) The RFP was a total small-business set-aside and contemplated a fixed price ID/IQ contract for one year with four option periods. The two sizes were 50,000 gallon and 210,000 gallon bladders, ld. at 2.

(442) Id. at 4.

(443) Id.

(444) Id. at. at 5. The tests in the RFP included "clamping samples in mechanical jaws and subjecting them to stress as measured in pounds/inch" in order to measure specified strength requirements. Id. at 4.

(445) Id. at 5.

(446) Comp. Gen. B-294836, Dec. 30, 2004, 2005 CPD [paragraph] 29.

(447) Id. at 1. The contracts were named the Commerce Information Technology Solutions Next Generation program. The RFP was issued as a total set-aside for small businesses and called for the award of multiple ID/IQ contracts. Small businesses were grouped into three tiers and those tiers competed among themselves. The protest involved Tier II. Id. at 2.

(448) The agency evaluated the proposals in the following manner: blue, green, yellow, or red. Price was rated depending on its differential will regard to the average price, Id. at 3 n.6.

(449) Id. at 7.

(450) Id.

(451) Id. at 9-10.

(452) Id. at 3-4.

(453) "Yellow" for pricing meant between ten and twenty percent higher than the average. Id. at 3 n.6.

(454) Id. at 7.

(455) Id. at 9.

(456) Id.

(457) Id.

(458) Comp. Gen. B-296334, et. al; 2005 U.S. Comp. Gen. LEXIS 154 (July 29, 2005).

(459) Id. at 2.

(460) The technical factors, in descending order of importance, were operational capability, past performance, price, and socioeconomic/subcontracting. Operational capability was divided into nine subfactors, Id. at *4.

(461) Id. at *3.

(462) The GAO also dismissed allegations of improper discussions made by both protestors. Id. at *6-14.

(463) Id. at *14.

(464) Id. at *15.

(465) Id. at *16.

(466) Comp. Gen. B-296627; 2005 U.S. Comp. Gen. LEXIS 180 (Sept. 22, 2004).

(467) Id. at *15-16.

(468) Stevedore services include the discharge and loading of ships, rail cars, and trucks and the drayage, or moving, of containers between rail, truck, and ship staging areas. Id. at *2.

(469) Id.

(470) Id. at *2-3.

(471) Id. at *15-17.

(472) Id.

(473) Id. at *4-5.

(474) Id. at *15-16.

(475) Id. at *17-18.

(476) Id. at *15-17.

(477) Comp. Gen. B-294777.3, May 1 1,2005, 2005 CPD [paragraph] 97.

(478) Patriot Contract Services submitted a protest with the GAO and subsequently withdrew its protest and filed an action with the federal district court. The GAO used its traditional bid protest format to issue the advisory opinion, Id. at 1.

(479) Id. at 9.

(480) Id. at 1.

(481) Although PCS received higher evaluations in two subfactors, including key personnel, the source selection authority found the two offerors to be essentially equal, Id. at 4.

(482) Id. at 3.

(483) Id. at 4.

(484) Id. at 3.

(485) American Overseas Marine Corporation's president testified, and later its counsel later recanted, that the prospective employees withdrew after the Navy changed locations of work sites under the contract, Id. at 6-7.

(486) Id. at 9.

(487) Id. In a footnote, the GAO briefly dismissed other allegations upholding the agency's past performance evaluations, the evaluation of PCS's subfactors, and the agencys discussions with PCS. Id. at 5 n.5.

(488) 388 F. Supp 2d 1010, 2005 U.S. Dist. LEXIS 37430 (2005).

(489) Id. at *30. The District Court also noted that the standard for injunctive relief was different from the GAO's standard for a meritorious protest. Id. at *31 n.13.

(490) Id. at *32.

(491) Id. at *35.

(492) Id. at *38.

(493) Id.

(494) Comp. Gen. B-295973; May 11,2005, 2005 CPD [paragraph] 89.

(495) The RFP contemplated the award of a fixed-price contract with two option years, Id. at 1-2.

(496) Id. at 2.

(497) Id. at 2. In the offeror's proposal, it asserted it would obtain similar results from its historical "85% retention rate of incumbent work forces." Id. at 3.

(498) Id.

(499) Id. at 3-4.

(500) 66 Fed. CI. 569 (2005).

(501) Id. at 576.

(502) Id. at 570.

(503) Id.

(504) Id.

(505) Id. at 572.

(506) Id. at 571-72. Mr. Zucconi had responded to a blind advertisement in a local newspaper, Id. at 571.

(507) Id. at 572. Mr. Zucconi initially submitted his resignation but was convinced by Orion to stay and sign the no-compete agreement, Id. The agreement bound Mr. Zucconi to only submit his resume with Orion. It also prohibited him from helping a competitor with its proposal, Id. at 575.

(508) Id. at 572.

(509) Id.

(510) Id. at 573. To prove a "bait and switch," a protestor must demonstrate (1) a representation of reliance on certain personnel, (2) agency reliance, and (3) a foreseeable outcome that the individual would not work on the contract. Id. at 573 n.5.

(511) Id. at 574.

(512) Id. at 576.

(513) Id.

(514) Comp. Gen. B-294358, et. al, Oct. 28, 2004, 2005 CPD [paragraph] 217.

(515) The RFP was set-aside for small businesses and anticipated the award of a cost-plus-award-fee contract for a base period of one year with four one-year options. Id. at 2.

(516) Id. at 5.

(517) Id. at 6-7.

(518) Id. at 7.

(519) Id. at 10.

(520) Id. at 8. The GAO also noted that the source selection official also mischaracterized the project officers' evaluation of IQ's proposed costs. Id. at 9.

(521) Comp. Gen. B-294358.6, B-294358.7, 2005 U.S. Comp. Gen. LEXIS 73 (Apr. 20, 2005).

(522) Id. at *12.

(523) Id. at *64. The GAO also considered a protest of the technical and past performance scores. Although there were problems, the GAO dismissed those changes as de minimus, Id. at *63. University Research Co. ultimately obtained a preliminary judgment in the COFC based on one aspect of that technical evaluation. University Research Co., LLC v. United States and IQ Solutions, 65 Fed. CI. 500 (2005).

(524) University Research Co., LLC v. United States and IQ Solutions, 65 Fed. CI. at 500.

(525) Id. at 625.

(526) Comp. Gen. B-294358.6, B-294358.7, 2005 U.S. Comp. Gen. LEXIS 73 (Apr. 20, 2005).

(527) Id. at *55.

(528) Id. at *50.

(529) Id. at *51.

(530) Id. at *51.

(531) University Research Co., 65 Fed. C1. 500, 513 (2005).

(532) Id. at 511.

(533) Id. at 512.

(534) Id.

(535) Id. at 515.

(536) Comp. Gen. B-295836; B-295836.2, 2005 U.S. Comp. Gen. LEXIS 183 (Apr. 18, 2005).

(537) Id. at *2. The RFP contemplated the award of an ID/IQ, fixed unit-price contract for a base period with four option years. Id.

(538) Id.

(539) Id.

(540) Id.

(541) Id.

(542) Id. at *3.

(543) Id. at *8.

(544) Id. at *8-9.

(545) 69 Fed. CI. 618 (2005).

(546) Id. at 625.

(547) Id. at 623.

(548) Id

(549) Id.

(550) Id.

(551) Id. at 623-24.

(552) Id. at 624.

(553) 67 Fed. CI. 384 (2005).

(554) Id. at 408.

(555) Id. at 386.

(556) Id. at 389.

(557) Id. at 392.

(558) Id. at 389.

(559) Id. at 396-97.

(560) The COFC characterized the summary narratives as "supplying a rationalization for the non-rational." Id. at 398.

(561) Id.

(562) Maden Tech received full credit for key personnel even though they were not current employees, Id. at 402. Evaluators gave inconsistent ratings for "N/A" scores, Id. at 403-04. BAI received an inconsistent evaluation for staffing when one examined its scores for the subfactors. Id. at 406. The government had a second set of score sheets which were not used but its existence was not sufficiently explained by the agency. Id. at 407.

(563) Comp. Gen. B-292354; B-292388, Sept. 2, 2003, 2005 CPD [paragraph] 107.

(564) The RFP contemplated the award of a cost-plus-award-fee contract for a base period of two years with two two-year options. The RFP had a detailed performance work statement and contemplated an award to the best value under the following equally weighted factors: mission suitability, past performance and cost. Id. at 2.

(565) The RFP included a table detailing point deductions based on the percentage difference between proposed costs and the most probably costs calculated by the agency. Id. The mission suitability factor had four subfactors: technical performance; management; safety, health, and mission assurance; and small disadvantaged business participation. Id.

(566) Id at 4-5.

(567) Honeywell's proposal was reduced by 100 points due to a 13.5 percent difference; the agency adjusted the cost due to an increase of proposed staffing from 248 FTE positions to 291. Wyle's proposal was reduced by 200 points due to a 21.5 percent difference; the agency adjusted the cost due to an increase of proposed staffing from 241 FTE positions to 291. Svedrup's proposal, which was selected for award, received its proposed cost, after an adjustment of ten FTEs, was within 2.7 percent of the most probable cost. Id.

(568) Id. at 7.

(569) Id. at 9-10.

(570) The GAO noted that the contemporaneous documentation was two pages long, with one page addressing the rationale. Id. The agency also failed to justify its analysis in testimony to the GAO by members of the source evaluation board. Id. at 8-9.

(571) Id. at 11-12.

(572) 54 Fed. CI. 389 (2005).

(573) Id. at 399.

(574) Id. at 382. Hydrazine is used as fuel for many defense programs, including satellites, rockets, and the Space Shuttle; the successful offeror would be the only hydrazine production facility in the U.S. Id.

(575) Id. at 399.

(576) Id. at 383.

(577) Id. at 400.

(578) Id. at 401. The COFC also rejected Arch's challenge that the other offeror should be excluded because the small business teamed with a French government-owned company. Id. at 399.

(579) Comp. Gen. B-295569; B-295569.2, 2005 U.S. Comp. Gen. LEXIS 68 (Mar. 10, 2005).

(580) Id. at *19-20.

(581) Id. at *2-3.

(582) Id.

(583) Id. at *19.

(584) Id. The GAO also found reasonable the Navy's downgrade of a warranty factor because the equipment would be stored beyond the warranty period; and evaluation of "similar" past performance even though the offerors reference contracts were vastly different in size. Id. at *13-14. The GAO also rejected a challenge to the awardee's price proposal as unbalanced since the Navy adequately evaluated the risk from the different pricing strategies. Id. at *17-18.

(585) Comp. Gen. B-294229; B-294229.2, Sept. 22, 2004, 2004 CPD [paragraph] 208.

(586) Id. at 2. The RFP was issued as a competitive section 8(a) set-aside and contemplated award of a cost-plus-award-fee task order contract for a base period of three years, with two one-year options, Id.

(587) Id. at 3-4.

(588) Id. at 4.

(589) Id.

(590) Id. at 4-5.

(591) Id. at 5. The GAO also rejected a challenge to JMTS's evaluation stating that even if the GAO agreed with JMTS, it would not have been in line for award and there was no prejudice to the offeror, Id. at 9.
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Author:Kantner, Andrew S.
Publication:Army Lawyer
Date:Jan 1, 2006
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