Link: GAO Opinion
Agency: Department of Agriculture
Disposition: Protest denied.
- Protester’s contention that agency misevaluated the protester’s proposal by imposing evaluation criteria not set forth in the solicitation and failing to consider proposal revisions is denied where the record demonstrates that the agency’s evaluation was consistent with evaluation criteria and otherwise reasonable.
- Agency provided meaningful discussions where, after observing equipment’s failure to meet all minimum equipment requirements, it informed protester orally that the equipment did not meet minimum requirements and provided written assessments from an on-site inspection identifying concerns about the equipment’s drainage issues.
General Counsel P.C. Highlight:
The protester argues that the agency’s award decisions were flawed in several respects. AAA contends that the evaluation was not consistent with stated evaluation criteria because the agency imposed new requirements that were not contained in the solicitation: the requirement of floor drains in the dressing area and the requirement that shower units contain all gray water.
The solicitation required that dressing areas “[p]rovide sufficient drainage to prevent the puddling of water.” The agency concluded that the protester’s equipment was unacceptable, in part, because AAA failed to satisfy this requirement for drainage. The protester contends that it met the requirement, and that the agency improperly downgraded its proposal because the units did not contain floor drains in the dressing area. Specifically, AAA contends that its offered units met the drainage requirements in three ways: (1) the unique design of its glass door shower stalls prevent spillage of water on the dressing room floors; (2) as a general practice, individual patrons usually use a disposable towel as a floor mat in the dressing area, which prevents puddling; and (3) the dressing areas are swept or mopped regularly. Thus, AAA contends that it should not have been downgraded for failing to provide drainage.
The agency agrees that units were not required to have floor drains in the dressing area. Rather, it acknowledges that offerors were free to propose any design aspects, or combination of design aspects, capable of providing sufficient drainage to prevent puddling in the dressing area. However, the agency argues and GAO agrees that none of the protester’s proposed methods to address the need for drainage were sufficient to comply with the terms of the solicitation. Further, the agency contends that none of these methods of preventing puddling are effective. With regard to the shower doors, the agency noted during its on-site inspection that not all of the shower doors closed properly, resulting in additional water spilling into the dressing area. In addition, the agency noted that, even if all shower doors did close properly, there are several other ways for water from the shower to spill into the dressing area. With regard to the use of towels as a floor mat, the agency correctly points out that the solicitation requirement is for the equipment to drain itself, not for the users to ensure that they do not drip water onto the floor. In this regard, the agency concluded that AAA’s units did not satisfy the requirement of providing sufficient drainage. Finally, with regard to the regular sweeping and mopping of the units, GAO agrees with the agency that these practices do not constitute drainage, as required by the solicitation. Thus, GAO denies this basis of protest.
The protester next appears to argue that the solicitation did not require the containment of gray water, and that the agency improperly downgraded its proposal because the A1 unit leaked gray water onto the ground when it was evaluated during the on-site inspection. GAO notes that the RFP required that vendors provide a minimum enclosed gray water storage capacity of 2,500 gallons. It is unclear what the protester believed was the purpose of the gray water storage container, if not to contain gray water. Given that the vendor was to be responsible for all aspects of operating the MSFUs, GAO finds that the requirement of providing gray water containment was reasonably encompassed in the requirement that the vendor provide a gray water storage container.
AAA next argues that the Forest Service never advised the company that its dressing area drainage was insufficient, and therefore the agency failed to conduct meaningful discussions regarding this perceived deficiency in its units. GAO states that in negotiated procurements, contracting agencies generally must conduct discussions with all offerors whose proposals are within the competitive range. Agencies are not required to afford offerors all-encompassing discussions. Although discussions must be meaningful, leading an offeror into the areas of its proposal requiring amplification or revision, the agency is not required to “spoon-feed” an offeror as to each and every item that could be revised or addressed to improve its proposal.
Here, the agency conducted oral and written discussions with AAA, during which it noted the apparent problems with drainage in the dressing area. In the handwritten notes attached to the May 17 discussion letter, the Forest Service expressed a “concern that [the] dressing area does not have the ability to contain all gray water” and that the units “may have a drainage issue.” As evidenced by the record here, the agency clearly communicated its concerns that the dressing area drainage was deficient. Also, it is clear from the protester’s cover letter that it was aware of these issues from the discussions. Therefore, GAO denies AAA’s contention that discussions in this area were inadequate. The protest is denied.