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Negotiated acquisitions.

Late Proposals


In Project Resources, Inc., (1) the Government Accountability Office (GAO) placed a high burden on an offeror attempting to gain relief from a proposal lost by the government. The case involved a request for proposals (RFP) for environmental remediation services for the U.S. Army Corps of Engineers. (2) Project Resources timely sent its proposal to the Corps of Engineers, but apparently the government lost its proposal. (3) After the Corps of Engineers failed to award Project Resources one of the five awarded contracts, Project Resources contacted the government who informed the company that its proposal could not be found. (4)

Project Resources filed a protest with the GAO along with a copy of the submitted proposal requesting that the GAO direct the agency to evaluate its proposal. The GAO refused, stating the general rule that the "negligent loss of proposal information does not entitle the offeror to relief." (5) Although agencies have a "fundamental obligation" to safeguard information, the overarching goal of having an open playing field for all competitors trumps the "occasional loss" of a contractor's proposal since it would be unfair to allow an offeror reconstruct an offer after the closing date of proposals. (6) Although the GAO conceded that this might be an "arguably harsh result," Project Resources did not provide "pre-closing evidence" of the proposal which might allow the GAO to disturb the Corps of Engineer's decision not to reopen the competition. (7)

The Corps of Engineers contracting officer testified that she knew of no other "comparable disappearance of a proposal" within the Sacramento District. (8) This testimony precluded Project Resources from using the limited exception of allowing relief in the case of a "systemic failure resulting in multiple or repetitive instances of lost information." (9)

Late Rejection of Late Proposal

In Argencord Machinery & Equipment, Inc. v. United States, (10) the Court of Federal Claims (COFC) ruled that the Army could reject a late proposal even though it had not discovered the submission was untimely until midway through the procurement. The U.S. Army Aviation and Missile Command (AMCOM) at Redstone Arsenal, Alabama, issued a RFP for tie rod structural support assemblies for Black Hawk helicopters. (11) Argencord faxed the first thirteen pages of its offer on 18 August 2006, or six days after the due date for initial offers, and delivered the rest the next day. (12) The Army issued an amendment, sending it to three additional offerors and Argencord, approving a request from Tek Precision Company, the ultimate winning offeror, to proffer alternate materials for the requested parts. (13) In what the contracting officer characterized as a "boo-boo" and a "rookie mistake," (14) the Army evaluated Argencord's offer and determined that it was in the competitive range for discussion purposes before realizing that it was late. (15) At that point, the Army notified Argencord that its proposal was rejected because the Army received it after the due date for initial offerors. (16)

Argencord made two arguments to revive its admittedly late proposal. Its first argument was that it was the only responsive proposal received. This argument ignored the fact that the AMCOM, in a negotiated procurement, has no obligation to reject non-responsive offers, as in a sealed bid procurement. The COFC rejected Argencord's theory, citing the agency's right to amend a solicitation based on an offeror's deviation from stated requirements. (17)

The second argument was that the AMCOM's amendment and Argencord's timely response to the amendment essentially waived the lateness of its initial proposal. (18) The COFC cited a GAO opinion with approval, holding that Hausted, Inc. (19) stated the settled rule regarding late proposals: "An extended period of negotiation that includes the submission of revised proposals cannot legally cure an initial late submission." (20)

Competitive Range

A Global Mess

In Global, A 1st Flagship Company, (21) the GAO sustained a protest on behalf of an offeror who was excluded from the competitive range based solely on a cost/price differential. (22) The Navy issued a RFP for a cost-reimbursement contract to operate and maintain inactive ships on the U.S. east coast. (23) The RFP indicated that technical factors were more important than cost/price. (24) The RFP indicated that the government would apply "plug-in" numbers for certain costs for materials; however those numbers were not specifically identified (25) and the government did not choose to provide that info in a solicitation amendment. (26)

After submission of initial proposals, the choice was between Global, the incumbent, and George G. Sharpe, Inc. Under the technical evaluation, Global was rated "highly acceptable," while Sharpe was rated "unacceptable, but capable of being made acceptable." (27) The Navy conducted a cost realism analysis on both proposals. The Navy, suspecting a clerical error, projected labor costs for option years that were missing from Sharpe's proposal. In analyzing Global's proposal, the Navy replaced proposed costs with actual cost figures from the previous year of the contract. The end result was that Global's contract was about $5 million more than Sharpe's. (28)

The contracting officer established a competitive range of just Sharpe's proposal, reasoning that Global could never realistically lower its cost enough to be competitive for award. (29) The GAO agreed with Global's protest, stating that the Navy committed errors in its cost realism analysis which tainted its exclusion from the competitive range.

The Navy conceded that Sharpe's evaluated cost/price should have been higher since some costs attributed to the indirect cost pool should have been categorized as other direct costs and included in the overall cost. (30) In addition, when the Navy projected the labor costs, it forgot to include the fee in the cost projections. (31) There were also problems with the cost realism evaluation of Global's proposal. When the Navy substituted the costs using the old contract, it failed to take into account that the direct labor projected for the new contract would be lower and that Global's figures accurately represented the changes for the new contract. (32) As a result, the adjusted difference between the two would have been $1 million less.

The key for the GAO was the fact that the only difference was cost/price. Since the RFP indicated that technical factors were more important than cost/price, it did not seem to make sense that the only initially "highly acceptable" proposal would have been excluded from the competitive range. The bottom line was that the GAO did not find sufficient support for the argument that Global could not have lowered its cost/price enough "to make it competitive for award." (33)


A Cogent Argument

The GAO, in Cogent Systems, Inc., (34) faulted the Army for not discussing a significant weakness with an offeror during discussions in a procurement for an Automated Fingerprint Identification System (AFIS) to be used by the government of Iraq. The Army issued a RFP under the FAR's commercial item authority contemplating the award of a fixed price contract for the Rapid Equipping Force. (35) The RFP stated that the basis for award would be a cost-technical tradeoff and that non-price factors were more important than price. (36)

In a litigious procurement, Cogent first submitted a protest after the Army awarded the contract without discussions to Motorola, partly because it evaluated Cogent's proposal as technically unacceptable. (37) The Army took corrective action and amended the RFP, conducting discussions with Cogent and Motorola. The Army again evaluated Cogent's proposal as unacceptable and sent Cogent a discussion letter to that effect. Cogent again submitted a protest to the GAO, which was dismissed as premature. (38) After both companies submitted revised proposals, the Army reopened discussions and provided Cogent a more detailed discussion letter highlighting areas of its design that were judged to be a significant risk (39)

Cogent filed an agency-level protest which the Army dismissed as premature. Cogent submitted another final revised proposal which the Army again evaluated as unacceptable. The Army again awarded the contract to Motorola, who provided the only technically acceptable proposal. Cogent filed the instant protest with the GAO complaining that the Army's evaluation was unreasonable.

In looking at Cogent's proposal, the GAO focused on the Army's evaluation of a proposed scanner that the Army evaluated as too slow for the requirement. Cogent's initial proposal involved a critique of the Army's minimum requirements for the scanner. (40) After the Army reopened the competition, Cogent substituted another scanner which met the Army's requirements but did not change the overall unsatisfactory rating. Subsequent discussion letters did not mention the scanner problem. (41)

The proposal evaluation board (PEB), in its evaluation of Cogent's proposal, seemed to focus on the delay caused by Cogent's protests, (42) noting that the board found it odd that Cogent's initial protest stated that a scanner could not be found, but the revised proposal contained an allegedly compliant product. (43) Unfortunately for the Army, the hearing testimony indicated that the Army failed to realize that Cogent had substituted a scanner which met the Army's requirements. Since the Army had labeled this area as a significant weakness, yet the Army never raised the issue in discussions, the GAO opined that the Army had not conducted meaningful discussions with Cogent. (44)

Reopening Discussions

Ford Tough

In Al Long Ford, (45) the GAO informed the Army that it must reopen discussions if the agency realizes, while reviewing an offeror's final proposal revision that a problem in the initial proposal was vital to the source selection decision but not raised with the offeror during discussions. The U.S. Army Tank-Automotive and Armaments Command (TACOM) issued a RFP for light utility trucks and accompanying spare parts and manuals to be delivered in Iraq. (46) The solicitation informed offerors that this was an urgent requirement and that timely delivery and performance was of the essence. (47) The RFP indicated that timeliness would be based on delivering the minimum guaranteed quantity within one hundred twenty days after receipt of the order. The agency would conduct a risk assessment on whether an offeror could meet the proposed delivery schedule. (48)

The TACOM conducted discussions and received final revised proposals (FRP) for seven offerors. Al Long Ford proposed a delivery period of one hundred and ten days and its total price was $207,824,347. The Army evaluated the proposed schedule as a "very high risk." (49) The source selection evaluation board contacted Ford's regional marketing manager who informed the Army that Ford would need ninety days of production lead time for any truck deliveries. The Army then added thirty-seven days to Al Long Ford's one hundred and ten-day delivery schedule. (50)

American Equipment Company, the winning proposal, proposed one hundred and fifty days and its total price was $191,443,169. The source selection authority, in its cost-technical tradeoff, determined that three earlier days of delivery did not warrant's Al Long Ford's additional price. (51)

Al Long Ford filed a protest arguing that its delivery schedule should not have been recalculated since it intended to comply with its proffered schedule. In addition, the company should have been given a chance to validate its schedule before the Army conducted its recalculation. (52)

The GAO agreed with Al Long Ford. Although the general rule is an agency is not required to reopen discussions for new problems in the final proposal revision, the GAO focused on the fact that Al Long Ford's initial proposal contained the same alleged problems which triggered the recalculation. (53) Therefore, the perceived flaws in the proposed schedule was not a new problem, but a new realization on the part of the government about an existing problem, which should have been discussed before the final proposal revisions were due. As the GAO states, the key fact was that the concerns "relate to the proposal as it was prior to discussions." (54) In order for those prior discussions to be meaningful, the agency was required to reopen discussions and inform the offeror of the agency's concerns. (55)

Improper Communications

The CIGNAfigance of Changes

The GAO used two cases to reinforce the idea that agencies may not allow offerors to correct mistakes unless the mistakes are minor and "both the existence of the mistake and what was actually intended are clearly apparent from the face of the proposal. (56)

In CIGNA Government Services, LLC, (57) the Department of Health & Human Services (HHS) issued a RFP for Medicare claims processing services for suppliers and beneficiaries of durable medical equipment. After receiving initial proposals, the HHS discovered that offerors had difficulty proposing the required level of effort (LOE). The HHS subsequently created a template for offerors to compete, which it provided to offerors along with the discussion letters. (58)

The source selection authority chose Palmetto GBA, LLC over CIGNA in one of the jurisdictions for the RFP. (59) CIGNA subsequently filed a protest with the GAO over the conduct of the source selection process. During the review of the agency record, CIGNA discovered that there was different data in Palmetto's final revised proposal (FRP), particularly in its LOE template, than in the source selection decision memorandum. (60) The HHS informed the GAO that there had been an exchange of e-mails between Palmetto and the HHS concerning errors in the FRP. The chair of the business evaluation panel, in charge of evaluating cost and price, asked Palmetto to confirm the hours in the LOE template. Palmetto, in an e-mail, responded by stating that the hours were "grossly overstate(d)" and attached corrections. (61) Additional e-mails and corrections followed. (62)

The GAO focused on testimony by the chair of the business evaluation panel that it was impossible to figure out Palmetto's intent behind its LOE submission without the follow-up e-mails. (63) As a result, the post-FRP communications equaled improper discussions.

In University of Dayton Research Institute, (64) the Air Force issued a RFP for design, engineering, and technical support services for weapons systems. The RFP requested that offerors propose a total evaluated price (TEP), (65) which basically was a mechanical sum of individually required labor rates. (66) The Air Force would use the TEP "for evaluation/selection purposes only." (67) In evaluating individual proposals, the Air Force discovered that offerors had trouble filling out the rate tables, using numbers for the TEP that deviated from "official" rate tables. (68) The Air Force then issued clarifications to some offerors, asking, for example, for one to correct evaluated rates, and another to reconcile its printed and electronic versions of the proposed subcontractor rates. (69) The Air Force then selected ten proposals for award "without discussions." (70)

The Dayton Research Institute protested to the GAO on the basis that it did not have a chance to revise its proposal like the others. (71) The GAO, in its review of the record, found that in the so-called clarifications, several offerors were allowed to make dozens of changes to the rates initially proposed. The multiple changes decreased an offeror's TEP by $6 million and increased another's by $6 million. (72) The GAO determined, as a result, that the mistakes in the initial proposals were not minor. In addition, the Air Force could not determine, by looking at the initial proposals, what the offerors' ultimate intent were regarding the TEP. (73) Because the Air Force used the TEP to ensure price reasonableness and to ultimately make the source selection decision, the alleged communications "clearly constituted discussions" which the Air Force should have held with all offerors. (74)

Past Performance

Where's the Dirt?

In Clean Harbors Environmental Services, Inc., (75) the GAO criticized a past performance evaluation for failing to consider the relevancy of the work of the incumbent. In addition, the GAO stated that, to analyze the relevancy of past performance, an agency should do more than just average the numerical ratings of submitted past performance questionnaires. (76)

The National Institutes of Health (NIH) issued a RFP for comprehensive chemical and low-level radioactive waste management for its main campus. (77) The NIH would make a best value selection looking at the following factors, in descending order of importance: technical, cost/price, and past performance. (78) Offerors would submit five contracts completed within the past two years, as well as current contracts similar in nature. The NIH would consider the "currency and relevance of the information, source of the information, context of the data, and general trends in the offeror's performance." (79) The source selection decision was between Clean Harbors and Clean Venture. The source selection authority selected Clean Venture, since the proposals were deemed to be technically equal, both received "satisfactory" past performance ratings, and Clean Venture offered a cost savings. (80)

Clean Harbors challenged the past performance evaluation. The GAO looked at the past performance evaluation to see if it was fair, reasonable and in accordance with the evaluation scheme, and if it was "based on relevant information sufficient to make a reasonable determination." (81) The GAO agreed with Clean Harbors, stating that the NIH failed to analyze the relevance of the past performance questionnaires and solely "considered the scores derived from the questionnaire responses received for the two firms." (82) The GAO criticized the NIH's evaluation of the relevancy of the past performance information, stating that Clean Venture's references appeared to be smaller and less complex than the solicitation, while Clean Harbor's evaluation received no weight for the experience of being the incumbent. (83)

The Wright Weight of Experience

In United Paradyne Corp., (84) the GAO criticized the Air Force's past performance methodology as improper because its mechanical application of numerical scores resulted in skewed final ratings. The Air Force issued a RFP for fuels management services at Wright-Patterson Air Force Base. The basis for award was a price/past performance tradeoff. (85) The RFP indicated that the ratings would be based on performance confidence, a mix of relevance and experience. The Air Force chose Four Winds Services, which had a lower price, but a lower past performance rating, than United Paradyne. (86)

United Paradyne, the incumbent, submitted a protest to the GAO, stating that the Air Force did not properly evaluate its performance at a highly similar contract in Puerto Rico, or did not give proper credit to the company for its excellent performance in other contracts. (87) The GAO looked at the Air Force's undisclosed past performance methodology with critical eyes. The Air Force averaged its evaluation of relevance into an overall rating, and then integrated that overall rating with the past performance rating, based on the point scores from the reference's questionnaires. The end result was incongruous; essentially a contractor with four excellent highly relevant contracts would be rated higher than a contractor with four excellent highly relevant contracts and four excellent non-relevant contracts (which would bring down his total average). (88) In addition, the methodology gave equal weight to United Paradyne's excellent performance as an incumbent as its performance on non-relevant contracts.

The GAO, ultimately, would have preferred a more through analysis of individual contracts rather than lumping all the contracts together in the Air Force's mechanical fashion. (89) The GAO finally criticized the Air Force for asking for references concerning terminated contracts, ironically under the heading "Relevant Contracts" and not evaluating the offeror's past performance under those contracts on the ground that they were "irrelevant." (90)

Price Evaluation

The Pit and the Pendulum

The GAO sustained a protest in R&G Food Service, Inc., d/b/a Port-A-Pit Catering, (91) holding that the agency's price evaluation was faulty when it only looked at unit prices without comparing the overall cost estimates. The Forest Service's National Interagency Fire Center issued a RFP for mobile food services for field locations during wildland fires. The RFP contemplated multiple awards of fixed-price requirements contracts for a base year and four option years. (92) Offerors were required to submit unit prices for meal services, mileage, and handwashing units for the requirements contract. (93) The source selection official made contracts awards to twelve offerors for twenty-one field locations; Port-A-Pit received no awards because the Forest Service determined that its prices were not fair and reasonable. (94)

Port-a-Pit submitted a protest arguing that the determination was based on only one element of its offer, mileage price, and its overall price could have been reasonable based on lower unit prices in the other areas. (95) The GAO agreed, holding that the Forest Service's price evaluation did not reflect the actual cost of the offeror's proposals. (96)

The GAO felt that a price reasonableness analysis should also look at quantity estimates and agreed with Port-a-Pit that its overall cost may have been lower depending on the relative percentages of the elements of the contract. (97) Since Port-A-Pit had a higher mileage price but lower meal and sink prices than the awardee, the offer could have been competitive if the Forest Service had used historical data to create realistic estimates to better conduct the price reasonableness evaluation. (98) Limiting the evaluation to analyzing the unit prices in isolation resulted in an improper basis to consider the proposed costs to the government. (99)

Cost Realism

Serco-stantial Evidence

The GAO, in Serco, Inc., (100) informed agencies that cost realism should not be done in a vacuum when evaluating proposals. The U.S. Navy Space and Naval Warfare Systems Command (SPAWAR) issued a RFP for various support services for the maintenance, modernization, and new system installation for the command, control, communications, computer, intelligence, surveillance and reconnaissance (or C4ISR) requirements on the U.S. west coast. (101) The RFP called for the award for ID/IQ performance-based contract for all requirements. Non-price evaluation factors would be significantly more important than price; the key non-price evaluation factors assigned points were: understanding of work-sample tasks, and management plan. (102) Offerors were also required to respond to sample tasks which would be evaluated for cost/price. (103)

The Navy received two timely proposals: Serco and AMSEC. After reviewing the evaluation and realizing that there was some confusion regarding the sample tasks, the SPAWAR amended the RFP to disclose the Independent Government Estimate (IGE), conduct discussions, and request revised proposals. (104) The amended RFP warned offerors that unsubstantiated estimates would result in cost realism adjustments (105) and may affect the offeror's technical evaluation. (106)

AMSEC's revised proposal did not use the IGE in its staffing estimate and relied on its initial proposal along with a written explanation of how the staffing levels were calculated. (107) The SPAWAR found the explanation unsatisfying and normalized AMSEC's evaluated cost to reflect the IGE. (108) Despite this increase in overall price, the Navy awarded the contract to AMSEC because, as the source selection official stated, there was no "significant risk." (109)

Serco challenged the evaluation, stating that the cost realism adjustment should have affected the evaluation of AMSEC's understanding of work and management plan since the proposed staffing levels showed a fundamental misunderstanding of the requirements. (110) The GAO agreed, stating that the judgment that the offeror's staffing levels were unrealistically low should have been reconciled with the positive assessment of the technical approach. (111) This result is especially reinforced by the fact that the RFP amendment contained a requirement to review the effect cost realism adjustments on the ultimate technical evaluation. (112) Here the fact that the SPAWAR more than doubled AMSEC's sample task hours should have impacted the acceptability of the technical piece, or at least raised the risk assessment of AMSEC's proposal. (113)

Machines Challenge Mechanical Evaluation

In Metro Machine Corp., (114) the GAO rejected a challenge to the Navy's overall cost realism analysis while ultimately sustaining the protest based on the Navy's failure to account for a teaming agreement on the awardees probable cost of performance. The Naval Sea Systems Command (NAVSEA) issued a RFP for a cost-plus-award-fee contract for maintenance and modernization work on ships in Norfolk, Virginia. (115) The RFP proposed two notional work item packages (one for each type of ship) for which offerors were required to use the government's estimated labor hours and material costs. The offeror could deviate from these estimates with "clear and compelling evidence" that its proposed changes were proper and warranted. (116)

After discussions, the NAVSEA conducted a cost realism analysis of each offerors' final revised proposal by essentially using the government's estimates as the base and rejecting any attempted deviation. (117) After labor hours and material costs were normalized, the cost realism analysis essentially boiled down to the offeror's rate information (118) which was adjusted to create the Navy's best estimate for each proposal. (119)

Metro challenged this technique as a mechanical application of normalization which failed to take into account individual technical approaches. (120) The GAO disagreed, stating that the reasonableness of a cost realism evaluation does not need to "achieve scientific certainty." (121) All the government would need to show was that the evaluation was "reasonably adequate" and the agency's conclusions were "reasonable and realistic in view of other cost information reasonable available" to the government. (122) Given the government s declaration in the RFP that the Navy would use the government's estimates absent "clear and convincing" evidence to the contrary, the NAVSEA's approach was reasonable. (123) The GAO also rejected a challenge to the underlying evaluation scheme as untimely since the cost realism approach should have been challenged prior to the submission of proposals. (124)

The GAO agreed with Metro in the challenge to the cost realism evaluation of the individual awardee, Earl Industries, LLC. Metro argued that the NAVSEA failed to take into account potentially different subcontract direct labor rates that Earl would achieve as a result of its teaming agreement. (125) The Navy raised the question with Earl, but ultimately made no effort to capture the cost of the teaming agreement. The GAO noted that this was significant, not only because the NAVSEA noted that the teaming agreement was a strength of Earl's proposal, but also because the normalization scheme magnified the importance of individual offeror's labor rates. (126) Since the end result was that the NAVSEA "ignored an actual cost" of Earls' proposal, Metro's proposal was sustained on this ground. (127)

Nothing Ventured, Nothing Gained

In Information Ventures, Inc., (128) the GAO sustained a challenge to the government's normalization of costs and a contradictory evaluation which both praised and criticized proposed staffing levels. The Centers for Disease Control and Prevention (CDC) issued a RFP for a cost-plus-fixed-fee contract for information development and dissemination activities for priority cancer efforts for the Division of Cancer Prevention and Control (DCPC). (129) The RFP identified a project director position without identifying duties or responsibilities or suggested or minimum proposed hours. (130) An amendment did suggest a level of effort of about 25-30 hours per month. (131)

The CDC included the offeror and BRI Consulting Group in the competitive range. (132) During discussions, both offerors reduced the number of hours for the program director. (133) The agency conducted then a cost realism analysis of the final proposal revisions. The technical evaluation panel added hours to that position based on the government's estimate of the hours per year. (134) The CDC then awarded the contract to BRI based on its lower evaluated cost. (135)

After a protest, the CDC conducted a corrective action which included a reevaluation of the proposals and a cost analysis by the CDC Acquisition Oversight and Evaluation Branch (OEB). Although the OEB had some concerns regarding the proposed costs, it made no changes to the CDC's initial evaluations which were used in the new source selection determination which again awarded the contract to BRI. (136)

Information Ventures challenged the technical evaluation, stating that the CDC praised both offerors for having "more than adequate staff" in the technical evaluation (137) while both offerors' costs were increased because their "hours had been lowered to unrealistic expectations." (138) The GAO agreed, stating that the contradiction between the cost evaluation and technical evaluation resulted in flawed evaluations which warranted a new source selection decision. (139)

In addition, Information Ventures challenged the CDC's normalization of cost. The GAO again sided with the protestor, stating that the agency's mechanical normalization did not take into account different technical methods which offerors were free to propose based on the terms of the RFP. (140) A key fact was that the RFP suggested "25-30 hours per month" while the normalization assumed a minimum of sixty-six hours per month. (141)

Researching Copying Costs

In a case discussed in last year's Year in Review, (142) the GAO denied a protest challenging an agency's upward adjustment to an offeror's proposed reproduction costs in University Research Company, LLC. (143) The Substance Abuse and Mental Health Services of the Department of Health and Human Services (HHS) issued a RFP to realign health information dissemination efforts under one contract. (144) The GAO sustained an initial proposal from University Research, based on the source selection authority's misstatement of an award recommendation. (145) Following a revised source selection decision, the GAO denied a second protest; (146) University Research then filed with the COFC which sustained the protest in one area normalized by the HHS: reproduction costs. (147)

The HHS reopened the competition on limited grounds, clarifying the requirement for reproduction work and seeking revised cost information in that area. (148) The HHS issued an amendment with significant upward revisions to the photocopying requirement. (149) University Research submitted a revised proposal which included a "two-tiered, fixed-price cap" pricing feature. The offer included a fixed price, for both color and black-and-white, for photocopying capped at one-twelfth of the total annual estimate. If the photocopying needs exceeded this figure, University Research raised its fixed price. (150) University Research based its cost estimate on the lower price, assuming that the HHS would balance its photocopying throughout the year. (151) IQ Solutions, the other competitor, offered separate costs for color and black-and-white photocopying with a detailed calculation concerning its estimates. (152)

In looking at the cost estimates, the HHS obtained historical data. Since the monthly limit would be exceeded in five months, the HHS recalculated University Research's costs. The source selection official did not change the technical scores, noting that photocopying represented less than ten percent of the total estimated costs. (153) Since both companies were essentially technically equal, the source selection official selected IQ, whose proposal cost $7.3 million less. (154)

University Research again submitted a protest to the GAO, challenging the HHS's failure to alter the technical evaluation scores, the HHS's upward adjustment of the photocopying costs, and the agency's decision not to adjust IQ's proposed costs. (155) The GAO denied the protest, holding that the narrow photocopying revaluation would not affect the overall technical evaluation. Since reproduction was a small part of the total performance work statement, two-and-a-half lines out of a thirty-three page description, any changes in reproduction would be de minimis to the larger scheme. (156)

The GAO approved of the HHS's cost adjustment, stating that the agency should evaluate "contractor-imposed conditions on cost-control devices." (157) The two-tiered price approach "raised cost issues the agency needed to consider if it was not planning to make changes in how it managed its workload, which the agency was neither inclined, nor required, to do." (158)

The GAO denied the overall protest, essentially because, even if it had won each aspect of its allegations, IQ's proposal would still be $1.2 million less than University Research's. (159) Since the proposals were essentially equal, it seemed doubtful that the HHS would select University Research's more expensive proposal. (160)

Seeking Closure

In EPW Closure Services, LLC; FFTF Restoration Co., LLC, (161) the GAO sustained a challenge to a cost realism analysis that failed to show that the agency could justify the cost figures used in the source selection analysis. The Department of Energy (DOE) issued a RFP for the award of a cost-plus-incentive-fee contract to a small business for the deactivation and decommissioning of the Fast Flux Test Facility, a nuclear test reactor located in southeastern Washington State. (162) The RFP contemplated a best-value award considering both cost/fee and five technical/management evaluation criteria. (163) As part of the proposed cost, offerors were required to submit a fully supported target cost (164) including an allowance for contingencies. (165)

Three proposals made the competitive range: SEC Closure Alliance, EPW and FFTF Restoration. The DOE selected SEC Closure for the award since SEC Closure had a "slight advantage" over FFTF restoration "because of its schedule and its approaches to the other technical issues." (166) SEC Closure was the only offeror to offer a cost savings under the maximum allowed funding, although the other two proffered earlier completion schedules. (167) Both EPW and FFTF Restoration submitted protests to the GAO. (168)

FFTF Restoration challenged SEC Closure's contingency allowance. SEC Closure identified one hundred and five separate risks which were rated for probability, cost, or schedule impact and for which the company proposed a mitigation approach. SEC Closure also ran the risks through a simulation to arrive at a contingency allowance of $14,274,050 with an eighty percent confidence level that the project cost would not exceed the offeror's proposed costs. (169)

The GAO noted that the evaluation of the contingency allowance was important since it was the main difference between the three proposal's evaluated costs which were wildly divergent. (170) The GAO's main concern with the agency's evaluation of these allowances was that the DOE appeared not to be able to verify any of the proposed costs and merely accepted the proposals' figures without question. (171) The GAO felt merely concluding that the offeror used a sound method to calculate the costs was not enough; the DOE's acknowledged limited review failed to adequately capture the difference between the offeror's approaches and was, therefore, unreasonable. (172)

The GAO also sustained RRTF's protest on the ground that, while the RFP made it clear that an accelerated schedule was desired, the DOE did not give offeror's an advantage for the "degree to which the offeror's proposed to accelerate completion ahead of the 2012 required site closure date ..." (173) The GAO also denied EPW's protest challenging the DOE's evaluation of a proposed technical approach as a weakness based on a risk that approval of the technical approach would not be granted by the lead regulatory agency. (174)


In Magnum Medical Personnel, A Joint Venture, (175) the GAO sustained a protest in which the agency failed to evaluate the protestor on the same terms as the awardee. The Air Force issued a RFP for direct care clinical support services for Air Force Medical Treatment Facilities (MTF). The Air Force intended to award up to five ID/IQ contracts with a four-year base contract period and two three-year option periods. (176) The evaluation factor of mission capability had three subfactors, in descending order of importance: retain, recruit, and qualify. (177) The RFP required that the healthcare employees obtain security clearance in order to be qualified to work in the MTF; the Air Force also performed a risk assessment for each sub factor. (178)

The Air Force rated Magnum, whose offer had the lowest price, as having a marginal mission capability and a moderate risk under the qualify subfactor. (179) This rating ultimately doomed Magnum's chance for selection for award, since the source selection authority selected the five most highly rated offerors for award. (180)

Magnum challenged the evaluation, stating that an evaluator who questioned its internal security process raised similar questions with an awardee's proposal which had similar faults. (181) The GAO agreed, stating that Magnum provided the same information as the awardee while arguably providing more detail regarding an internal process for complying with the RFP's security requirements. (182) The GAO noted that the awardee only added the word, "security," in flowcharts and milestones, while Magnum used a narrative description to show how it would issue credentials to its workers. (183) The GAO concluded that it was not reasonable for the Air Force to give Magnum a lower rating than the awardee. (184)

Just for Kic(k)s

The GAO sustained a protest in KIC Development, LLC, (185) holding that the agency could not evaluate a proposal as technically acceptable for relying on a subcontractor to meet the RFP's experience requirement. The Department of Housing and Urban Development issued a RFP for lead evaluation services for single-family properties. (186) The RFP contemplated award to the lowest-price, technically acceptable proposal in four geographical areas: Atlanta, Denver, Philadelphia, and Santa Ana. (187) Under the experience and past performance factor, the RFP stated, "[t]he Offeror and/or its proposed key personnel and/or its proposed subcontractors must have performed the same or similar service as required by the solicitation over approximately the last three years." (188)

The technical evaluation panel judged KIC's proposal to be technically unacceptable since "KIC relies completely on a sub for the work;" based on this evaluation, KIC did not receive the award for the Atlanta region. (189) KIC challenged this evaluation because it met this requirement through a properly-committed subcontractor. (190)

The GAO agreed with the protestor, holding that the HUD strayed from the stated evaluation scheme. The GAO found that the term "and/or" could be met jointly or by only one of the named entities and the HUD could not penalize KIC for relying on a subcontractor. (191)

Valid Passports

The COFC found that the Government Printing Office (GPO) used undisclosed criteria in a binding manner and was therefore required to disclose that criteria to all competitors in OTI America v. United States. (192) The GPO issued a solicitation for a new electronic U.S. passport; the GPO set up the procurement in stages in which competitors would be eliminated from the competition. (193) OTI joined a final field of eight contractors after filing a GAO protest, withdrawn after corrective action by the GPO. (194)

During stage two, the GPO tested samples from all contractors. The GPO issued a "cure notice" to OTI concerning test failures of sample electronic passport book covers. (195) OTI submitted a second set that contained a different flaw in an adhesive material. OTI discovered that it had received the wrong ingredient from a supplier, but the GPO refused to accept the new sample. The GPO then informed OTI that it would be eliminated from stage two. (196)

OTI filed a protest with the GAO which was denied. (197) OTI then filed a complaint with the COFC, arguing that GPO used an internal document, labeled "E-Passport Selection Guidance," as undisclosed evaluation criteria in contravention of the FAR. The GPO argued that the Selection Guidance was merely "an internal set of guidelines" which did not need to be disclosed in the initial solicitation. (198)

The COFC agreed with OTI, finding that the Selection Guidance, never published to any of the contractors, (199) was used as evaluation criteria to assess proposals. Although the protest involved test and evaluation in a second stage of a procurement, the COFC applied "principles pertinent to evaluation criteria in procurements" since the evaluative stages ultimately would result in the award of a contract for "full agency deployment." (200)

The COFC agreed with a GAO case, Telos Field Engineering, (201) which struck down an undisclosed point system which had been used in a binding fashion against competitors. The COFC found that the GPO had used the Selection Guidance as binding evaluation criteria without prior notice to the competing contractors. (202) The COFC also criticized the Selection Guidance as being internally inconsistent, since the elimination rules were mandatory and discretionary in different areas of the Guidance. (203) In a redacted section, the COFC found that the GPO had also applied the Selection Guidance in an inconsistent manner. (204)

The COFC also found that the contracting officer failed to use independent judgment in eliminating OTI on the basis of the conclusions by the technical evaluation team. (205) The COFC focused on the contracting officer's testimony that she had "no idea" concerning a question about whether a clerical error would result in elimination under one of the rules of the Selection Guidance. (206)

The COFC declined to issue an injunction of the competition; however, the COFC instructed the GPO to accept OTI's product as a restored competitor of the competition to see if OTI should graduate to the second stage of the procurement. (207)

Getting Hung Up on the Numbers

In BAE Technical Services, Inc., (208) the GAO sustained a protest in which the agency applied two different standards in the evaluation process. The Air Force issued a RFP for a cost-plus-award fee contract for the operations and maintenance of the Eglin Test and Training Complex in Eglin Air Force Base, Florida. (209) The protest surrounded the evaluation of the program management subfactor of the mission capability factor of the "best value" award decision. (210) The Air Force intended to evaluate "innovation and efficiency initiatives ... that would produce reasonable qualitative improvements, cost reductions, or cost avoidance." (211)

Three offerors provided final proposal revisions, including BAE, the incumbent; and InDyne, the awardee. (212) The critical difference between BAE and InDyne was within the program management, agility, and organizational conflict of interest subfactors. The key aspect for both program management and agility was plans to reduce full-time equivalent (FTE) personnel over the life of the contract. (213)

BAE used a business process reengineering program to develop its FTE personnel reduction and efficiency plans; (214) the Air Force did not trust the modeling methodology of its program and doubted BAE's ability to achieve its planned reduction in FTEs. (215) The GAO did not find the Air Force's concerns about the program to be unreasonable. The main problem was that a similar type of scrutiny was not applied to InDyne's FTE reduction plans. (216)

As the GAO stated, while BAE at least tried to present a coherent analytical calculation, InDyne's calculations used general references to prior attempts, e.g. "we have always successfully employed continuous improvement on our contracts." (217) As the chairman for the source selection evaluation team testified, "we didn't get hung up on the numbers." (218) The scrutiny applied to BAE's methodology should have been extended to InDyne's generalities. (219)

A Weird Evaluation

The GAO disapproved of an agency's evaluated weaknesses of a proposal, finding them unsupported or unreasonable in Intercon Associates, Inc. (220) The General Services Administration (GSA) issued a RFP for a fixed-price ID/IQ contract for a comprehensive electronic forms system. (221) The GSA received eleven proposals, including eight in the competitive range. The agency awarded the contract to Information Analysis; Intercon, the incumbent, submitted a protest to GAO, challenging the evaluation of its proposal. (222)

The GAO agreed with Intercon, finding that the GSA's brief evaluation record, which included initial evaluation scoring sheets, no consensus evaluation report, a brief summary of advantages and disadvantages of each offer's operational demonstration, and a brief source selection document, was "either factually incorrect, internally contradictory, or so cryptic that (the GAO was) unable to discern either the basis for the evaluators' concerns or how their concerns related to the solicitation's evaluation criteria." (223)

The GAO found that the GSA's determination that Intercon's proposal could not generate "true" electronic forms to be unsupported. (224) In addition, the GAO found that the GSA's conclusion that the file sizes of electronic forms were larger than Information Analysis's proposal was unsupported by comparing the offeror's file size with the Adobe Acrobat forms used by the awardee's. (225) The GAO also dismissed an assessment of the wizard function which shows a split screen with the electronic form and a text window as "weird," stating that it was not clear what the evaluator meant while noting that the source selection decision referred to Intercon's "nice wizard function." (226) Finally, the source selection decision criticized Intercon's proposal stating that it required a separate application that needed to be downloaded and was not available to most agencies. (227) The GAO noted that Adobe Acrobat, the awardee's preferred program, also needed to be downloaded and that thirty-seven different federal agencies had installed seventy-seven thousand copies of the software for Intercon's product, Accessible FormNet. (228)

The Mystery of the Spherix Revisited

In a case discussed in last year's Year-in-Review, (229) the GAO again sustained a protest of the U.S. Forest Service's solicitation for the National Recreation Reservation Service (NRRS) in Spherix, Inc. (230) The GAO issued a RFP for a multiyear fixed-unit-price requirements contract with six yearly options for the NRRS, which is a one-stop reservation system for the public use of recreational facilities and activities on federal lands. (231) The basis for award was a cost-technical tradeoff with the following evaluation factors in descending area of importance: technical approach, management approach, reservation system demonstration, past performance and price. (232)

After the sustained protest, the Forest Service amended the RFP and reopened the competition. The Forest Service narrowed the competitive range between Spherix, the incumbent contractor for the National Park Reservation Service run by the National Park Service, and Reserve America, the NRRS incumbent contractor. (233)

Spherix challenged the Forest Service's award of the contract to Reserve America, arguing that the agency's evaluation of its proposal was unreasonable. The GAO agreed, finding that the agency did not fairly consider the differences between the two proposals (234) and that the source selection authority had an incorrect understanding of the relative strengths of the two proposals. (235)

First, the GAO determined that the agency misunderstood Spherix's proposal concerning field control of inventory. The agency's report stated that the inventory management capability did not address tours and ticketing. Spherix's proposal, however, states that its capability applies to both recreation facilities and recreation activities. (236) Second, the agency's report mistakenly asserted that Spherix's proposal did not offer automatic uploading of data. In fact, even though Reserve America received a more favorable assessment, the GAO felt that Spherix's proposal offered more offline capabilities than Reserve America. (237)

In addition, Reserve America received credit for proposing an alternative implementation plan. (238) In response to a question from Spherix, the Forest Service seemed to imply that the agency wanted a one-time deployment of the system. The GAO felt that this statement misled Spherix into not submitting an alternative plan. (239)

The GAO also noted that the source selection decision may have exaggerated a strength for Reserve America in the "ease of use" discriminator involving customization of the system. At the hearing, a software consultant for Reserve America testified that the requested customization was as easy as picking which shirt or tie to wear, and that the Forest Service's use of this aspect as a key discriminator was "silly." (240) The GAO noted that Reserve America's incumbency may have given the company an unfair advantage in this area. (241)

Turning Over a Green Leaf

In a procurement covered in last year's Year in Review, (242) the GAO sustained a protest in Greenleaf Construction Company, (243) finding that an alleged "bait and switch" of proposed key personnel rendered the evaluation process unfair. The HUD issued a RFP for the award of fixed-unit-price ID/IQ contract for single-family home management and marketing services. (244) The protest involved the award of the contract for properties in the Ohio/Michigan area. (245) Following a COFC decision, the HUD awarded the contract to Chapman Law Firm. Greenleaf then filed a protest with the GAO, alleging that the evaluation was improper.

The GAO agreed, finding that Chapman had notice that two key personnel would be unavailable for work under the awarded contract at least two months prior to the HUD's final evaluation. (246) In addition, Chapman knew, at around the same time period, that the company would use a different software package and company than proposed in its initial offer. (247) In addition, the contracting officer failed to take into account Chapman's sale of one of its principal assets, which would have changed a positive DCAA audit, relied upon by the contracting officer, on Chapman's responsibility to perform the contract. (248)

Hitting the Golf Ball FAT

In Novex Enterprises, (249) the GAO found that an agency unreasonably selected an awardee based on an evaluation that failed to fully consider the overall impact of different delivery schedules, a key factor of the solicitation. The Defense Logistics Agency (DLA) Defense Supply Center in Columbus, Ohio, issued a RFP for an urgent requirement for 15,887 steel side rings. (250) The RFP contained two required delivery schedules: if the part required a first article test (FAT), the FAT would be completed in forty-five days, the company would deliver 3000 rings in 165 days, and 3000 rings every thirty days thereafter until complete. If the DLA waived the testing requirement, the required schedule was 3000 rings in ninety days and 3000 rings every thirty days thereafter until complete. (251) The RFP stated that preference may be given for "offered deliveries that are shorter than the required delivery." (252)

Novex proposed a unit price of $38.50 and two delivery schedules: if the DLA waived the FAT requirement, Novex could provide 3000 rings in 120 days, with 3000 rings every thirty days thereafter; if FAT was not waived, it would comply with the proposed government schedule. (253) Badger, the awardee, relied on a FAT waiver proposing to deliver 3000 initial units in 150 days, with 1800 rings every thirty days until complete; and a unit price of $39.11. (254) Essentially, Badger would provide the required units in sixty more days than the proposed government schedule, while Novex's schedule, which mirrored the government estimate, was fifteen days behind Badger's since the DLA ultimately did not waive FAT for Novex.

The DLA selected Badger, the only offeror for whom FAT was waived. The source selection decision stated that, since the DLA had a limited supply, the extra time needed for the FAT approval for the other offerors and the urgency of the requirement gave Badger the advantage, since the DLA estimated that FAT would take at least seventy-five days. (255)

Novex challenged the review, stating that Badger's offer did not meet the required delivery schedule and should not be eligible for award. (256) The GAO agreed, finding that the Badger's offer did not seem to be the best value. The GAO felt that Novex would complete the entire contract of 15,887 steel rings seventy-five days earlier than Badger. In addition, a gain of fifteen days for the initial delivery of the 3000 units did not seem to be worth the additional cost of Badger's proposal. (257) The GAO recommended that, given the urgency of the requirement, Badger should be allowed to furnish the initial quantity, but the DLA should redo the RFP for the remaining steel side rings. (258)

Improper Weights for YORK

In YORK Building Services, (259) the GAO found that the Department of Agriculture (USDA) improperly converted a RFP into a lowest-price, technically acceptable procurement due to a thin source selection document and summary evaluation. The USDA issued a RFP for janitorial and recycling services for buildings in Washington, D.C. (260) The RFP emphasized technical superiority and listed three technical factors in descending order of importance: technical approach, management plan, and past performance. (261) Out of twenty-five proposals, the USDA found twenty-three technically acceptable and included only YORK and Obsil, the awardee, in the competitive range. After discussions, the source selection authority found both proposals technically equal and selected Obsil due to its lower price. (262)

YORK submitted a protest to the GAO, alleging that the USDA improperly gave technical approach and management plan equal weight. (263) The GAO agreed, finding that the evaluators gave both factors a maximum score of thirty-five points, which was contrary to the RFP. In addition, the evaluators seemed to strive for technical acceptability, and the final report, which was only one page and two lines in length, only confirmed technical acceptability. (264)

In addition, the GAO felt that the source selection authority relied upon the point scores in a mechanical fashion in awarding the contract to Obsil. (265) The source selection authority total evaluation of Obsil was that "Obsil, Inc. clarified all technical concerns and submitted final proposal revisions that are inclusive of work statement requirements." Her evaluation of York was that the company "too has responded satisfactorily to the panel concerns and demonstrates its capacity to perform required services and its proposal is substantially equal to Obsil."

Other than that, the GAO found that the record contained no discussion of the technical evaluation factors, and the source selection official and the technical evaluators looked at the final proposal revisions "merely to verify their acceptability, rather than to assess relative quality or to evaluate whether either proposal was superior to the other under the evaluation factors and weightings required by the RFP." (266) The GAO also dismissed the agency's supplemental argument which contained "new rationales, based on a hypothetically correct evaluation, for which there is no support in the contemporaneous record." (267)

(1) B-297968, 2006 U.S. Comp. Gen. LEXIS 58 (Mar. 31,2006).

(2) The RFP contemplated the award of five indefinite delivery, indefinite quantity (ID/IQ) contracts to section 8 (a) contractors. Id. at *1.

(3) Id. at *2. The RFP was due at the Sacramento District Corps of Engineers office in Sacramento, California, no later than 1400 on 12 October 2006. Project Resources shipped its proposal via Federal Express and the tracking slip shows the government received the proposal that day at 0938. Id.

(4) Id.

(5) Id. at *3.

(6) Id.

(7) Id. at *4.

(8) Id. at *2.

(9) Id. at *4.

(10) 68 Fed. Cl. 167 (2005).

(11) Id. The RFP was a small business set-aside for an ID/IQ contract.

(12) The fax cover sheet indicated that the company thought the solicitation was due on 29 August 2006. Id. at 170.

(13) Id. The COFC also rejected a challenge to this amendment stating that authorizing an alternate material was not so substantial as to require the Army to cancel the solicitation and reissue a new one. Id. at 174.

(14) Id. at 171.

(15) Id. at 170 n.6.

(16) Id. at 172.

(17) Id. at 173-74.

(18) Id. at 174.

(19) Comp. Gen. B-257087, 94-2 CPD [paragraph] 49.

(20) Id. at 3.

(21) Comp. Gen. B-297235, B-297235.2, Dec. 27, 2005, 2006 CPD [paragraph] 14.

(22) Id. at 10.

(23) Id. at 2.

(24) Id. The factors in descending order of importance were: technical and management approach, corporate experience, past performance, personnel resources, and small business participation. Id.

(25) Id.

(26) Id. at 3.

(27) Id. at 4.

(28) Id.

(29) Id. at 5.

(30) The GAO noted that those costs were billed as such in Sharpe's similar contract for the west coast. Id. at 7.

(31) Id.

(32) Id.

(33) Id. at 10.

(34) Comp. Gen. B-295990.4, B-295990.5, Oct. 6, 2005, 2005 CPD [paragraph] 179.

(35) Id. at 1-2.

(36) Id. at 3. The RFP included the following factors: technical/management with experience, integrated technical/management, design, risk management, and key personnel as subfactors; past performance, price, and subcontracting plan. Id. at 2.

(37) Id. at 4.

(38) Id.

(39) Id. at 5. These risks included a design change that was not explained, a radical change in proposed performance that raised questions concerning its stability, disconnects in calculations of response times, and an unexplained price decrease for upgrades. Id.

(40) The scanner had to be certified by the FBI and able to scan a fingerprint card at 1,000 pixels per inch in ninety seconds. Id. at 7.

(41) Id.

(42) The PEB noted:
 ... in their first Protest (sic) they explained how they nor anyone
 else not meet (sic) this rated requirement ... they have still not
 explained how they meet it not and there is still no AFIS in Iraq
 because they protested saying no such system existed. What are we to
 believe? When will we have permission to move on and meet our
 critical need?

Id. at 8.

(43) Id.

(44) Id. at 9.

(45) Comp. Gen. B-297807, Apr. 12, 2006, 2006 CPD [paragraph] 67.

(46) Id. The RFP contemplated the award of a two-year fixed-price ID/IQ contract for a minimum quantity of five hundred and a maximum quantity of six thousand trucks. Id.

(47) Id. at 2.

(48) Id. The solicitation also cautioned that a schedule which did not meet the estimated guideline of one hundred twenty days may be considered unacceptable for award. Id.

(49) Id. at 3.

(50) Id. at 4. Al Long Ford incorporated fifty-three days of production lead-time in its proposal. Id. at 3.

(51) Id. at 4.

(52) Id. at 5.

(53) Id. at 7.

(54) Id. at 8.

(55) The Army had already issued the delivery order and due to the urgent requirements, the GAO did not recommend to overturn the Army's award of the contract. The GAO did recommend that Al Long Ford receive reimbursement of its proposal preparation costs. Id. at 11.

(56) CIGNA Gov't Svs., LLC, B-297915.2, 2006 U.S. Comp. Gen. LEXIS 75 (May 4. 2006) at *17; University of Dayton Research Inst., Comp. Gen. B-296946.6, June 15, 2006, 2006 CPD [paragraph] 102, at 8.

(57) CIGNA Gov't Svs., LLC, 2006 U.S. Comp. Gen. LEXIS 75 at *17.

(58) Id. at *7.

(59) The RFP split the HHS requirement into four different jurisdictions. The jurisdiction in question involved the following states and territories: Alabama, Arkansas, Colorado, Florida, Georgia, Louisiana, Mississippi, New Mexico, North Carolina, Oklahoma, Puerto Rico, South Carolina, Tennessee, Texas, Virgin Islands, Virginia, and West Virginia. Id. at *4 n.3.

(60) Id. at *12.

(61) Id. at *13.

(62) Id. at *15.

(63) Id. at *18.

(64) Dayton, 2006 CPD [paragraph] 102.

(65) This acronym was used by the solicitation. Id. at 3.

(66) Id.

(67) Id.

(68) The Air Force used two different sets of pricing tables: one for evaluation and one used for the resulting contract. Id. at 11.

(69) Id. at 6.

(70) Id. at 7.

(71) Id.

(72) Id. at 8.

(73) Id.

(74) Id. at 9.

(75) Comp. Gen. B-296176.2, Dec. 9, 2005, 2005 CPD [paragraph] 222.

(76) Id. at 3.

(77) Id. at 1.

(78) Id. at 2.

(79) Id.

(80) Id.

(81) Id. at 3.

(82) Id. at 4.

(83) Id.

(84) B-297758, 2006 U.S. Comp. Gen. LEXIS 46 (Mar. 10, 2006).

(85) Id. at *2-*3. There were three evaluation factors: mission capability, past performance, and price. The RFP evaluated mission capability as acceptable/unacceptable. Id. at *2.

(86) Id. at *3.

(87) Id. at *4.

(88) Id. at *12.

(89) Id. at *13.

(90) Id. at *14.

(91) Comp. Gen. B-296435.4, B-296435.9, Sept. 15, 2005, 2005 CPD [paragraph] 194.

(92) Id. at 1.

(93) Id. at 2. The offerors also submitted unit prices for additional refrigeration storage space, additional tents and seating, additional tents and seating, and supplemental food and beverage items for a blanket purchase agreements. Id

(94) Id. at 3.

(95) Id. at 3-4.

(96) Id. at 5.

(97) Id. at 6-7.

(98) Id. at 7.

(99) Id. at 8.

(100) Comp. Gen. B-298266, Aug. 9, 2006, 2006 CPD [paragraph] 120. Serco filed the protest on behalf of Resource Consultants, Inc.; the Navy conceded that Serco had standing as the parent firm. Id. at 1. For the sake of clarity, this note will refer to Serco as the offeror.

(101) Id.

(102) The evaluation factors were: corporate experience, past performance, management plan, understanding of work-sample tasks, small business participation, cost/price, professional employee compensation plan, and small business subcontracting plan. Id. at 2.

(103) Id.

(104) Id. at 3.

(105) Id.

(106) Id. at 4.

(107) Id. at 5.

(108) Id.

(109) Id. at 6.

(110) Id.

(111) Id. at 7.

(112) Id.

(113) Id.

(114) B-297879.2, 2006 U.S. Comp. Gen. LEXIS 87 (May 3, 2006).

(115) Id. at *1-*2. The RFP stated that award would be made to the best value based on technical factors and cost. Id. at *3.

(116) Id. at *7.

(117) Id. at *14.

(118) The rate information consisted of the direct composite weighted labor rate, general and administrative, and subcontractor rates. Id. at * 14.

(119) Id. at *14-*15.

(120) Id. at *17.

(121) Id. at *20.

(122) Id.

(123) Id. at *25.

(124) Id.

(125) Id. at *25-*26.

(126) Id. at *28.

(127) Id. at *28-*29.

(128) B-297276.2, B-297276.3, B-297276.4, 2006 U.S. Comp. Gen. LEXIS 47 (Mar. 1, 2006).

(129) Id. at *1.

(130) Id. at *13.

(131) Id. at *15.

(132) Id. at *3.

(133) Id. at *13.

(134) Id. at *19.

(135) Id. at *4.

(136) Id. at *5-*6.

(137) Id. at *8.

(138) Id. at *9.

(139) Id. at *11.

(140) Id. at *19.

(141) Id. at *29. The GAO also sustained a challenge to the final contract, which contained a ceiling rate for general and administrative costs which was not in BRI's final proposal revision. The GAO viewed this addition as a material change which should have triggered a new round of discussions. Id. at *26.

(142) Major Andrew S. Kantner et al., Contract and Fiscal Law Developments of 2005--Year in Review, ARMY LAW., Jan. 2006, at 38-39 [hereinafter 2005 Year in Review].

(143) Comp. Gen. B-294358.8, B-294358.9, B-294358.10, Apr. 6, 2006, 2006 CPD [paragraph] 61.

(144) Id. at 2. The RFP was set aside for small businesses and HHS intended to award a cost-plus-award-fee contract for one year with four option years. The RFP identified four technical evaluation criteria including (1) understanding the project; (2) technical approach, (3) key personnel, and (4) management plan and facilities. Id.

(145) University Research Co., LLC, B-294358, B-29435.2, B-294358.3, B-294358.4, B-294358.5., Oct. 28, 2004, 2004 CPD [paragraph] 217.

(146) University Research Co., LLC, B-294358.6, B-294358.7, Apr. 20, 2005, 2005 CPD [paragraph] 83.

(147) University Research Co., LLC v. United States, 65 Fed. C1. 500 (2005).

(148) University Research, 2006 CPD [paragraph] 61, at 5.

(149) Id. at 5-6.

(150) Id. at 6-7.

(151) Id. at 7.

(152) Id.

(153) The reproduction costs were approximately $4 to $5 million out of a total contract between $60 and $65 million. Id. at 8.

(154) Id. at 9.

(155) Id. at 10.

(156) Id. at 12.

(157) Id. at 14.

(158) Id.

(159) Id. at 15.

(160) The GAO also dismissed additional allegations concerning adjusting IQ's costs as untimely even though the GAO noted that IQ would still be the lower-priced proposal. Id. at 15-16.

(161) B-294910, et al., Jan. 12, 2005, 2006 CPD [paragraph] 3.

(162) Id. at 2.

(163) The evaluation criteria were: (1) technical approach (weight of thirty percent), (2) key personnel, (fifteen percent with project manager weighed higher), (3) experience and past performance (each worth ten percent for a total of twenty percent), (4) environment, safety and health (fifteen percent), and (5) business management (twenty percent). Id. at 3.

(164) The offeror needed to show a target cost for each activity was shown in a work breakdown statement, the completion date, the target fee, the minimum fee, the maximum fee, the share line (ratio) for cost overruns or underruns, and a detailed basis of estimates. Id.

(165) The total contract target cost and target fee could not exceed $43.5 million for fiscal year 2005 and $46.1 million for each subsequent fiscal year. Id.

(166) Id. at 4.

(167) Id.

(168) Id. at 6.

(169) Id. at 9.

(170) FFTF Restoration proposed $22,114,000 with a fifty percent confidence rating; EPW proposed $25,836,000. The agency cost estimate was 18.3 percent. Id. at 10.

(171) The agency's contingency analysis noted that "the (offeror's) techniques used to arrive (at the final calculation) ... and the amount of information that was provided varied, making it difficult to assess whether any of the three offerors assessed the variability more accurately than the others. Id. The testimony of the source evaluation board was "... if you're looking at a hundred different categories, I mean, it requires a lot of analysis ... So we accepted the information that was provided by the offerors ..." Id. at 11.

(172) Id. at 12.

(173) Id. at 8.

(174) Id. at 16. The technical approach dealt with sodium residue removal; EPW proposed to leave 350 gallons or less in the inside of the vessels and piping. Id. at 14.

(175) B-297687.2, 2006 U.S. Comp. Gen. LEXIS 105, June 20, 2006.

(176) Id. at *3.

(177) Mission capability and past performance were equal in importance, and proposal risk was more important than price. Id.

(178) Id. at *7.

(179) Id. at *9-*10.

(180) Id. at *18.

(181) Id. at *19-*20.

(182) Id. at *22-*23.

(183) Id.

(184) Id. at *24-*25.

(185) Comp. Gen. B-297525.2, Jan. 26, 2006, 2006 CPD [paragraph] 27.

(186) Id. at 1.

(187) Id. at 2.

(188) Id.

(189) Id. at 4.

(190) Id.

(191) Id. at 5.

(192) 68 Fed. Cl. 646 (2005).

(193) Id. The solicitation contained mandatory CLINs with guaranteed minimum amounts. The goal was either to award the contract to a single company or to multiple awardees using optional CLINs. Id. at 649.

(194) Id. at 650.

(195) Id.

(196) Id. at 651.

(197) OTI America, Comp. Gen. B-295455.3, 2005 CPD [paragraph] 157.

(198) OTI, 68 Fed. Cl. at 652.

(199) Id. at 653.

(200) Id. at 655.

(201) Comp. Gen. B-253492.6, Dec. 15, 1994, 94-2 CPD [paragraph] 240.

(202) OTI, 68 Fed. Cl. at 656.

(203) Id. Rule 2 stated that a product may be eliminated if it fails more than once in a single phase; Rule 4 stated that a second failure would result in a mandatory elimination unless the product was in "significant compliance," and Rule 3 stated that a second failure which was a different problem would receive a cure notice and an opportunity to correct. Id.

(204) Id. at 657.

(205) Id.

(206) Id. at 658.

(207) Id. at 660.

(208) B-296699, 2005 U.S. Comp. Gen. LEXIS 250 (Oct. 5, 2005).

(209) Id. at *1-*2.

(210) Id. at *2-*3. There were four evaluation factors: Mission capability and past performance were of equal importance and each was more important than proposal risk; mission capability, past performance and proposal risk, when combined, were significantly more important than cost/price. Id. at *3.

(211) Id. at *3-*4.

(212) Id. at *4.

(213) Id.

(214) Id. at *7-*8.

(215) Id. at *19-*20.

(216) Id. at *22.

(217) Id. at *23.

(218) Id. at *16.

(219) In a redacted section, the GAO applied similar logic to the Air Force's evaluation of agility. Id. at 11-12. The GAO recommended that the Air Force reopen discussions and request revised proposals. Id. at 12.

(220) Comp. Gen. B-298282, B-298282.2, Aug. 10, 2006, 2006 CPD [paragraph] 121.

(221) Id. at 1.

(220) Id. at 2.

(223) Id. at 3.

(224) Id.

(225) Id. at 5. For example, the file size of the Standard Form 278 for Accessible FormNet, used by the protestor, was 407.6 kilobytes while the PDF version is 1799.3 kilobytes. Id.

(226) Id. at 5-6.

(227) Id. at 6.

(228) Id. The GAO also addressed a criticism of the use of digital certificates, stating, inter alia, that the RFP did not address a preference regarding this detail. Id. at 7. Also, in a heavily redacted section, the GAO found that the GSA's evaluation of Intercon's key personnel proposal was unsupported. Id. at 8.

(229) 2005 Year in Review, supra note 142, at 28.

(230) Comp. Gen. B-294572.3, B-294572.4, Oct. 20, 2005, 2005 CPD [paragraph] 183.

(231) Id. at 2.

(232) Id. at 3. The technical factors were significantly more important than price, with price becoming more important if the differences in technical matter were narrow. Id.

(233) Id. at 4.

(234) Id. at 9.

(235) Id. at 8.

(236) Id. at 6.

(237) Id. at 7.

(238) Id. at 8.

(239) Id. at 9.

(240) Id. at 10.

(241) Id. The GAO also noted that there was some confusion about the solicitation's requirement for offline capability. The GAO sided with Spherix in its interpretation that offline capability should be greater than the interpretation of the Forest Service and Reserve America. Id.

(242) 2005 Year in Review, supra note 142, at 24.

(243) Comp. Gen. B-293105.18, B-293105.19, Jan. 17, 2006, 2006 CPD [paragraph] 19.

(244) The contract supervised the maintenance and sale of foreclosed properties under the Federal Housing Authority's role in administering the home mortgage insurance program. Id. at 2.

(245) The contract was a small business cascading set-aside. Id.

(246) Id. at 7.

(247) Id. at 10. The court also sustained an OCI allegation.

(248) Id. at 15.

(249) B-297660, B-297660.2, 2006 U.S. Comp. Gen. LEXIS 41 (Mar. 6, 2006).

(250) Id. at *2.

(251) Id.

(252) Id. at *3.

(253) Id.

(254) Id. at *4.

(255) Id. at *4-*5.

(256) Id. at *6.

(257) Id. at *8-*9. The GAO noted that in an alternative dispute resolution submission, the DLA proposed different rationale but gave little weight to this submission since it was made "in the heat of litigation." Id.

(258) Id. at *9-*10.

(259) Comp. Gen. B-296948.2, B-296948.3, B-296948.4, Nov. 3, 2005, 2005 CPD [paragraph] 202.

(260) Id. at 1.

(261) Id.

(262) Id. at 2.

(263) Id. at 3.

(264) Id. at 5.

(265) Id.

(266) Id. at 7.

(267) Id.
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Author:Kantner, Andrew S.
Publication:Army Lawyer
Date:Jan 1, 2007
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