Welcome to the weekly online journal focused entirely on GAO Bid Protests of Federal Government contract awards brought to you by the Government Contracts Practice Group at General Counsel, P.C.. This site will be updated at least once a week with analysis and summaries of the latest GAO Bid Protest decisions and information to help professionals and business owners make informed decisions on protesting a contract solicitation or award.

Search our archives past GAO protest decisions and come back often to keep up to date on the latest trends and legal decisions in Bid Protests. If you have questions about filing a Bid Protest or you were awarded a contract that has been protested, please contact the editor immediately as missing a filing deadline is the quickest way to lose your right to protest or defend your award.

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Wait…I Was Never Told I Had To Do That: When an Agency Uses Unstated Evaluation Criteria

Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC

Date: Friday, April 18, 2014, 6:47pm EST

McGoldrick Construction Services Corporation, B-409252.2, March 28, 2014
In theory, the government procurement process is relatively simple. A government agency determines it has a need for goods or services, and issues a solicitation to the public. The solicitation states what the agency is looking for, describes the criteria by which proposals will be evaluated, and specifies the method the agency will utilize to make its source selection decision. Contractors that think they can provide the goods or services sought will submit a proposal meeting the solicitation criteria, which is then evaluated by the procuring agency. The agency decides which proposal is best, and they award a contract. Easy enough, right?

(Cue federal contractors bursting out in laughter)

Unfortunately, anyone who has ever actually submitted a proposal for a government contract knows that things aren’t that simple. Submitting a proposal is an intensive, and often times, frustrating process. Sometimes the contractor will trip themselves up at some point in the proposal preparation or submittal process. But often times, it will be the agency that will further the frustration. One such way an agency can muck up the process is by using “unstated evaluation criteria.” A recent GAO decision provides an example of this issue.

In McGoldrick Construction Servs. Corp., the Army Corps of Engineers issued a solicitation seeking design-build firms for construction and maintenance at the Fort Hood Army installation in Killeen, TX. The agency contemplated award of multiple ID/IQ task order contracts. The solicitation stated that the procurement would be conducted in 2 phases. During phase 1, the agency would evaluate proposals based on two factors: past performance, and organization and technical approach. The agency would then select approximately ten of the best proposals to compete in phase 2 of the competition.

McGoldrick submitted a proposal, but it was not deemed to be one of the top proposals and was thus eliminated after phase 1. One of the reasons McGoldrick’s proposal was eliminated from the competition was because of an assessed “significant weakness” under the organization and technical approach factor. McGoldrick filed a protest with GAO, arguing that in assessing McGoldrick’s proposal with a significant weakness, the agency utilized evaluation criteria that were not stated in the solicitation.

GAO agreed with the protester, and sustained the protest. In its decision, GAO found that the agency’s assessment of a significant weakness to McGoldrick’s proposal was unreasonable for several reasons. The individual reasons themselves are not all that important in this case, as the key point is that the agency improperly applied a stricter standard in its evaluation of McGoldrick’s proposal than was stated in the solicitation. As an example, the agency actually penalized McGoldrick for not submitting a quality control plan, when the solicitation explicitly instructed offerors not to submit a quality control plan. GAO found this to be problematic.

Competing for government contracts is a difficult enough task on its own, so to add to that difficulty by requiring contractors to adhere to hidden requirements is just plain unfair. Fortunately, the bid protest process allows government contractors with an opportunity to keep things (somewhat) unbiased. It is important for unsuccessful offerors to scrutinize the reasons for any deficiencies, weaknesses, or significant weaknesses assessed to its proposal by a procuring agency. If an agency goes outside of the evaluation criteria stated in the solicitation, the contractor may have a sustainable protest.

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Bidding on “Alternate” Bid Item Not Always Required

Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC

Date: Friday, April 11, 2014, 2:29pm EST

Hamilton Pacific Chamberlain, LLC, B-409208.2, April 3, 2014
Several recent articles have discussed relatively minor issues that cost a contractor an opportunity for an award. We’ve seen an offeror fail to respond to a solicitation amendment, an offeror fail to confirm its emailed submission was actually received by the agency, and an offeror fail to include 3 of the required 3,000+ labor rates in its proposal. In each of those situations, the offeror’s proposal-related failure prevented the offending offeror from receiving further consideration for award. We’re going to switch gears this week, and discuss a case where an offeror’s omission of a bid price on its proposal did not disqualify it from receiving an award.

Hamilton Pacific Chamberlain, LLC is actually a story of two separate protests of a procurement conducted by the Dept. of Veterans Affairs (VA). The VA issued an invitation for bids (IFB) for construction services at the VA Medical Center in Martinsburg, WV. Several amendments to the IFB were issued. One such amendment established two bid line items. The first line item was the base bid line item for the required renovations to the building. The second line item was expressly labeled as an “alternate” item, which removed a wheelchair lift from the requirement of the base line item.

The low bidder submitted a bid price for the base line item, but did not submit a bid for the alternate line item. The VA initially determined that the low bidder’s failure to submit a price for the alternate line item disqualified it from award, and thus the VA announced an award to Hamilton Pacific Chamberlain (HPC). However, the low bidder filed a bid protest with GAO challenging its rejection. The low bidder argued that because the alternate line item was a deduction from the base bid price, the agency could award either the full project or the project minus the wheelchair lift at the same price. The low bidder’s bid price was low either way, thus it argued it should have been selected for award.

The VA ultimately agreed with the low bidder, and took corrective action rescinding its rejection of the low bid. As a result of the corrective action, the VA announced that award would be made to the low bidder. HPC filed this protest with GAO, in essence arguing that the VA was correct in its initial determination that the low bid should be rejected for failing to include bid prices for both line items.

The VA countered HPC’s protest by arguing that failing to bid on the alternate line item did not render the low bid unresponsive, because the VA ultimately did not make an award on the alternate line item. GAO agreed with the VA, and denied HPC’s protest.

GAO stated that agencies must evaluate bids based on the work actually awarded. Basically this means that bidders do not always have to submit bid prices on every alternate line item in a solicitation to be considered for award. This is true even where a solicitation explicitly warns offerors that failing to bid on all items will cause rejection of a bid. A bid that does not submit a bid price on an alternate line item is only nonresponsive if the procuring agency’s evaluation and award includes the alternate item that was not bid.

Practically speaking, this decision introduces an interesting option for contractors when submitting bids on solicitations with varying alternate line items. If a solicitation contains an alternate line item that for one reason or another makes the project less desirable, the contractor could theoretically omit a bid price for the undesirable alternate item and remain responsive to the line items it was actually pursuing. This case makes it clear that as long as it submits a bid price on the line item actually awarded, the agency has to consider it for award.

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When Almost Perfect Isn’t Good Enough: The Importance of a Complete Proposal

Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC

Date: Monday, March 31, 2014, 7:00pm EST

Business Integra, Inc., B-407273.22, February 27, 2014
There are a host of products where 99.9% effectiveness is perfectly acceptable to meet our needs. For example, someone worried about germs would probably consider a hand sanitizer claiming to be 99.9% effective as close to perfect as can be expected. Whether the product actually meets the claimed 99.9% effectiveness is a separate issue, but we generally accept it at face value and consider the germ issue handled.

However, as is often the theme in these articles, things play out a little differently in government contracting. Often times, being 99.9% effective, or almost perfect, isn’t quite good enough when it comes to federal contract awards. This was a lesson recently driven home by GAO in a bid protest decision.

In 2010, the Department of Homeland Security issued a solicitation for the second iteration of its enterprise acquisition gateway for leading edge solutions (EAGLE II) program. The solicitation anticipated award of multiple indefinite-delivery/indefinite quantity contracts. The solicitation also stated that there would be a separate competition for proposal evaluation and award purposes to be held exclusively among small businesses.

The solicitation required offerors to submit a pricing template in which the offeror would include all of its labor rates for each of the solicitation’s 36 labor categories. However, each of these labor categories was broken up into 3 different levels of experience, and each level of experience was further separated into 2 different levels of security clearance.

To make things more complicated, the offerors were required to submit all of these labor rates for two different locations, factoring in performance at either a government site or a contractor site. And because the solicitation provided that the contracts would be awarded for a 5 year base period, with a 2 option years, the offerors had to include all of these different labor rates for all 7 years of the contract.

The solicitation stated that each offeror had to submit labor rates for all of the labor categories, including all contract periods. Thus, each offeror was required to submit labor rates for 3,024 different versions of the solicitation’s required labor categories (36 categories x 3 experience levels x 2 security levels x 2 site options x 7 pricing years).

Business Integra, an 8(a) small business, submitted a proposal under the small business track of the solicitation. During the evaluation of its proposal, the agency determined that Business Integra left three labor rates blank under one of the labor categories. As a result, the agency determined that Business Integra’s proposal did not conform to the solicitation requirements and was thus ineligible for award.

Business Integra filed a protest with GAO making two basic arguments: (1) the lack of pricing reflected Business Integra’s willingness to perform at no cost to the agency; and (2) the missing prices should have been waived as a minor informality. GAO disagreed with the protester on both counts. GAO noted that the solicitation explicitly required the offerors to submit labor rates for all labor categories and all contract periods. Further, GAO has consistently held that offerors bear the responsibility to submit a proposal that contains all of the information required under a solicitation. As a result, GAO denied the protest.

In this case, Business Integra submitted labor rates for 3,021 of the 3,024 required categories. For those of you scoring at home, that is just over 99.9%. While hitting that “almost perfect” mark might be plenty good enough in most (99.9%?) situations, it clearly wasn’t enough here. As unfair as it may seem sometimes, solicitations often require offerors to be perfect in order to be eligible for an award. Contractors would be well advised that before they hit send on that email, that they conduct multiple rounds of checks to ensure that all the requirements of a solicitation have been met.

 

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