Link: GAO Opinion
Agency: Defense Threat Reduction Agency
Disposition: Protest denied.
1. Protest that agency misevaluated protester’s proposal is denied where record reasonably supports evaluation and protester’s arguments reflect mere disagreement with agency judgments.
2. Agency was not required to attempt to remedy proposal deficiencies through clarifications or discussions because deficiencies rendered proposal materially deficient and major revisions and additions would be required to make it acceptable.
3. Protest challenging cost/technical tradeoff decision is denied where no tradeoff was required because protester’s proposal was technically unacceptable and could not form basis for award.
General Counsel P.C. Highlight:
Analytic first asserts that rather than assigning adjectival ratings to proposals based on a comparison of the proposals to the stated evaluation criteria, the agency instead improperly assigned adjectival ratings based on a comparison of proposals to each other. Analytic’s position is based on briefing slides provided by the source selection evaluation board (SSEB) to the source selection authority (SSA). The briefing in question states that the mission capability evaluation team (MCET) assigned strengths and weaknesses to each proposal, reviewed the strengths and weaknesses for consistency, and then assigned mission capability subfactor ratings. Following this process, the briefing states, the evaluations and ratings were reviewed for consistency. GAO does not view either of the referenced consistency reviews as indicating, as Analytic asserts, that proposal ratings improperly were assigned based on a comparison of proposals to each other rather than on a comparison of proposals to the evaluation criteria.
Analytic’s proposal received a two-star weakness under the overall management approach subfactor for failing to “clarify how they will provide regional expertise in Africa or South America, per SOO 4.1.” Analytic argues that this weakness was unreasonable in several respects. GAO states that in reviewing a protest against the propriety of an evaluation, it is not GAO’s role to independently evaluate proposals and substitute its judgment for that of the contracting activity. Rather, GAO will review an evaluation to ensure that it was reasonable and consistent with the evaluation criteria in the solicitation and applicable procurement statutes and regulations; a protester’s mere disagreement with the evaluation does not show that it lacked a reasonable basis.
GAO has reviewed the solicitation’s evaluation criteria, the statement of objectives (SOO), and the agency’s responses to offerors’ pre-closing solicitation questions, and GAO agrees with the agency that the overall management approach subfactor evaluation criteria encompassed an offeror’s ability to provide specific regional expertise, including expertise in Africa and South America. Further, based on the record, GAO concludes that the agency did not unreasonably determine that Analytic’s proposal failed to adequately demonstrate the ability to provide regional expertise in Africa and South America. With respect to the first individual cited by Analytic, the proposal does not provide details to show that the individual has expertise in South America. The second individual was listed as “[DELETED].” Additionally, the description of his experience is limited and general in nature.
Next, Analytic challenges the “marginal” rating assigned to the firm’s proposal under the overall management approach subfactor. Analytic argues that this rating was unreasonable because the firm’s proposal received seven strengths under this subfactor, but only one weakness. Because the solicitation provided that a 2-star weakness constituted a significant flaw, and because the solicitation defined a marginal rating as signifying one or more significant weaknesses, the marginal rating assigned to Analytic’s proposal under this subfactor was reasonable and consistent with the solicitation.
Analytic challenges both of the 3-star weaknesses assigned to its proposal under the task order 1 technical approach and staffing plan subfactor. As to the first 3-star weakness assigned, Analytic has not shown–and it is not clear from the record–that the agency unreasonably determined Analytic’s concepts, assessments, and capabilities (CAC) support staff plan to be inadequate with respect to joint capability integration and development system (JCIDS) or planning, programming, budget, and execution (PPBE) experience. Analytic’s challenge amounts to mere disagreement with the agency, and, therefore, this basis of protest is denied. As to the second 3-star weakness, in the specific context of the task order 1 staffing plan, the proposal is unclear at best as to whether the firm intended to compensate for the lower-than-estimated staffing level through the use of staff assigned to other Strategy and Plans Enterprise projects, or whether surge personnel staff would be used. GAO states that it is an offeror’s responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation requirements and allows a meaningful review by the procuring agency. GAO does not view as unreasonable the agency’s concern that Analytic apparently planned to compensate for the lower-than-estimated staffing level through the use of staff assigned to other Strategy and Plans Enterprise projects. Analytic’s arguments to the contrary do not provide a basis to sustain the protest.
Analytic asserts that the agency improperly failed to request that Analytic clarify aspects of the firm’s proposal relating to the evaluated proposal weaknesses. GAO finds that clarifications are “limited exchanges” that agencies may use to allow offerors to clarify certain aspects of their proposals or to resolve minor or clerical mistakes. Agencies are not required to request clarifications in the context of an award, such as the one here, made without discussions. Analytic’s proposal was deemed unacceptable. Providing Analytic with an opportunity to correct the weaknesses would constitute discussions, not clarifications, because it would involve the submission of information necessary to make the proposal acceptable.
Analytic also argues that the agency’s decision not to engage offerors in discussions was unreasonable. GAO states that there generally is no obligation that a contracting agency conducts discussions where, as here, the solicitation specifically instructed offerors of the agency’s intent to award a contract on the basis of initial proposals without conducting discussions. Notwithstanding, Analytic’s position to the contrary, an agency is not precluded from awarding on the basis of initial proposals merely because an unacceptable lower-priced offer might be made acceptable through discussions. Further, a contracting officer’s discretion in deciding not to hold discussions is quite broad, id., and an agency’s decision not to initiate discussions is a matter we generally will not review. Analytic has provided no basis to call into question the agency’s decision not to engage in discussions.
Finally, Analytic challenges the source selection decision, arguing that the agency improperly failed to perform a best value tradeoff that considered the firm’s lower proposed cost. GAO states that it is well established that a technically unacceptable proposal cannot be considered for award. Because GAO sees no basis to question the agency’s determination that Analytic’s proposal was unacceptable, the agency was not required to consider the firm’s lower proposed cost in its best value determination. The protest is denied.