Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Wednesday, December 5, 2013, 4:57pm EST
AXIS Management Group LLC, B-408575, November 13, 2013
Anyone who had to do chores as a kid can surely relate to the feeling of being given the ability to complete a task according to your own method, only to have to do it all over because you didn’t do things according to your parents’ expectations. I couldn’t have been the only kid constantly muttering “why didn’t you just tell me to do it that way to begin with” under my breath every time I was asked to (re)wash the family car. But, while parents can get away with that “my way or the highway” evaluation process, the government cannot.
Procuring agencies will sometimes give offerors the ability to propose their own unique method to complete the requirements of a solicitation. If the offeror proposes a plan that meets the solicitation requirements, the agency cannot reject or modify the offeror’s method simply because it did not conform to how the government envisioned things getting done. This was the situation addressed in a recent GAO bid protest decision.
In AXIS Management Group LLC, the Department of the Interior, U.S. Geological Survey (USGS) issued a solicitation for the award of an ID/IQ contract for laboratory operational support at the National Water Quality Laboratory. The solicitation advised offerors that they were to submit their own technical approach with their own estimates for the labor mix and number of labor hours necessary to meet the requirements of the solicitation. USGS included two offerors in the competitive range—AXIS Management Group LLC and Cherokee Nations Technology Solutions, Inc. An award was made to Cherokee for a total evaluated price of $4,813,859.16, and AXIS filed protest.
In its evaluation of AXIS’s proposed technical approach, which included its own labor mix and estimated labor hours, USGS determined AXIS’s approach to be appropriate and acceptable. Despite this evaluation, USGS took it upon itself to “normalize” the offered prices by substituting its own idea of what the labor mix and labor hours should be, and recalculating the total price for both AXIS and Cherokee. As a result of USGS’s normalization, AXIS’s proposed price went from $3,824,972.80, which would have been the lowest price, to $4,914,872.10, which was higher than the award price to Cherokee.
Agencies do have the ability to normalize offerors’ rates according to the same standard or baseline, but only in cases where there are really no logical reasons for why offerors approaches would be different from one another. In cases such as this, where the solicitation specifically instructed offerors to propose their own unique technical approach, it is not proper for an agency to normalize offerors’ prices. Unlike the car washing scenario discussed above, an agency cannot allow an offeror to propose its own method of achieving the solicitation requirements, but then ignore the offered method in favor of its own approach when conducting its evaluation.
Despite AXIS’s proposed technical approach being different from the agency’s own estimates, it still conformed to the terms of the solicitation. GAO found that by adjusting AXIS’s price to conform to its own estimates, USGS performed an improper price evaluation. As a result, GAO sustained the protest.