Link: GAO Opinion
Agency: Department of the Interior
Disposition: Protest denied.
Protest against elimination of protester’s proposal from competitive range is denied where record supports reasonableness of the agency’s evaluation of protester’s proposal as technically unacceptable.
General Counsel P.C. Highlight:
The protester argues that the evaluation of its proposal was unreasonable. GAO states that in reviewing a protest challenging an agency’s evaluation of proposals and subsequent competitive range determination, GAO will not evaluate the proposals anew in order to make its own determination as to their acceptability or relative merits; rather, GAO will examine the record to determine whether the evaluation was reasonable and consistent with the evaluation criteria. Contracting agencies are not required to retain a proposal in the competitive range where the proposal is not among the most highly rated or where the agency otherwise reasonably concludes that the proposal has no realistic prospect of award. Where a proposal is technically unacceptable as submitted and would require major revisions to become acceptable, exclusion from the competitive range is generally permissible.
The protester argues that the evaluators improperly assigned its proposal a rating of red/unacceptable under the technical subfactor relating to its system’s ability to operate in disconnected mode. However, the agency points out that the ability to provide remittance, deposit, and reconciliation functionality while disconnected from the Denver CPOSD was specified as a mandatory capability in the functional requirements matrix; the ability to provide these functionalities therefore was assessed and evaluated under the first and most important of the technical subfactors, “ability to provide a POS system including a CPOSD and POS configurations.” The agency explains that in reviewing the protester’s initial proposal, the evaluators found that it failed to articulate a solution capable of providing the required functions while disconnected from the Denver CPOSD, but decided to give the firm the opportunity to address this and other concerns through discussions. Accordingly, the agency issued the protester a number of detailed evaluation notices (EN) seeking additional information regarding its proposed approach to providing the required functionality. After reviewing the protester’s responses to the ENs, the evaluators concluded that AHCC had not demonstrated that its system would be able to perform the required functions while disconnected from the Denver CPOSD, and identified various deficiencies in the protester’s proposal under the ability to provide a compliant POS system subfactor. While AHCC argues that its initial proposal showed that its POS configurations would be capable of furnishing the functionalities in question while disconnected from the CPOSD, a review of the record shows that, as the agency found, AHCC’s initial proposal did not make clear that its POS configurations had the required capability in this area; in fact, it was precisely this lack of clarity that reasonably led the agency to repeatedly ask the protester to clarify the matter during discussions.
The protester argues that the contracting officer improperly failed to consider offerors’ past performance and proposed pricing in his second competitive range determination. Contrary to the protester’s argument, the record–as reflected in the statement AHCC itself quotes–shows that the contracting officer in fact did consider the offerors’ past performance and proposed pricing, and decided that those factors did not provide a basis to distinguish among the proposals. In any event, an agency may exclude a proposal properly found technically unacceptable from the competitive range regardless of its price or the offeror’s past performance rating. In sum, GAO concludes that the record shows that the agency reasonably concluded that AHCC’s proposal was unacceptable under the most important technical subfactor, relating to the proposed system’s capability to perform certain functions while disconnected from the Denver CPOSD, and that the agency therefore reasonably found the proposal unacceptable overall for failing to meet a material requirement of the RFP, and properly excluded it from the competitive range based on its lack of technical acceptability. The protest is denied.