Link: GAO Opinion
Agency: United States Marine Corps
Disposition: Protest sustained.
1. Protest that agency misevaluated awardee’s proposal is sustained where record shows that, while solicitation provided that agency would conduct extensive testing on submitted product samples, it failed to conduct testing on awardee’s product, as revised following discussions, and instead accepted awardee’s unsubstantiated representation that it would provide product that meets solicitation requirements.
2. Protest that agency failed to engage in meaningful discussions with protester is sustained, where record shows that agency downgraded protester’s proposal for failure to include information that was not called for in solicitation, the information was not the subject of discussions, and weakness assigned to protester’s proposal ultimately was the sole technical discriminator between proposals; agency either should have amended solicitation to reflect changed requirements, or conveyed new requirements to protester during discussions.
General Counsel P.C. Highlight:
Ashbury first maintains that the agency unreasonably concluded that Horus’s proposed reticle was compliant with the terms of the solicitation. The reticle is a system of lines, dots, crosshairs or wires in the focus of the eyepiece of an optical instrument, typically used to estimate speed or distance, or as a measuring or counting device or centering or aiming device. GAO states that agencies are required to evaluate proposals in a manner that is consistent with the terms of the solicitation. GAO’s review of the record shows that the agency improperly failed to obtain a telescope from Horus that was configured with its alternate reticle and, consequently, did not evaluate and test the alternate reticle proposed by Horus in accordance with the requirements of the RFP.
After receipt of initial proposals, the agency subjected all of the proposed SSOTs to extensive testing, both to evaluate the performance of the devices, and to evaluate their durability when subjected to various environmental conditions. Additionally, the sample SSOTs were given to Corps personnel in the field to perform user evaluations. The initial test report found that, while Horus’s proposed reticle met the RFP’s threshold requirement for maintaining angular subtense, it was not similar to the reticle in the USMC Scout Sniper Day Scope. Subsequently, in July, the agency conducted an additional test with respect to the proposed reticles. The original test regimen was modified “to include results of the procedure to determine the presence of a duplex reticle.” After conducting the additional test, the agency determined that Horus had not proposed a duplex reticle. As a consequence, the agency’s initial technical evaluation report found Horus’s originally proposed telescope unacceptable because, among other reasons, it “does not meet the threshold requirement of being a duplex reticle per the requirement [of the performance specification] . . . .” In contrast, all of the test data relating to Ashbury’s reticle showed that its proposed reticle met the requirements of the performance specification, was a duplex reticle, as required, and achieved the agency’s objective of being similar to the reticle in the USMC Scout Sniper Day Scope. During discussions with Horus, the agency pointed out, among other things, that its proposed reticle was not a duplex reticle, as required by the performance specification. In response, Horus amended its proposal. The language is identical to the language included in Horus’s initial proposal, except for the addition of one word.
The record shows that, after receiving Horus’s proposal revision, the agency neither required Horus to identify a specific model nor did anything to examine or test Horus’s proposed alternate reticle. The record contains no indication that the agency obtained a sample telescope with the alternate reticle installed, or that it in any way critically evaluated the change in the firm’s proposed reticle, despite the fact that this was a key attribute of the telescopes. Instead, the agency accepted Horus’s unsubstantiated representation that its alternate reticle was [deleted] and, in apparent reliance on that representation, concluded that its alternate reticle was not only acceptable, but also met the performance specification objective of being similar to the reticle in the USMC Scout Sniper Day Scope. In this regard, the agency’s second technical evaluation report simply notes, without elaboration, that the alternate reticle meets the objective requirement of the performance specification of being similar to the reticle in the USMC Scout Sniper Day Scope.
The agency’s actions were unreasonable in view of the fact that Horus’s originally proposed reticle was found technically unacceptable. In contrast, as noted, the reticle offered by Ashbury was shown through the agency’s testing procedures to have met both the threshold requirements and the objective of the performance specification of being similar to the reticle in the USMC Scout Sniper Day Scope. The agency’s acceptance of the alternate Horus reticle was unreasonable because doing so was inconsistent with the stringent testing requirements that the RFP stated would be applied to establish technical acceptability. Moreover, the agency’s actions constituted an improper waiver of the testing requirements for Horus, but not Ashbury. As a result of the waiver, although Horus’s proposal was higher priced than Ashbury’s, it is not clear whether Horus submitted a technically acceptable proposal. GAO therefore sustains this aspect of Ashbury’s protest.
Ashbury next maintains that the agency failed to engage in adequate discussions with it. The agency assigned the Ashbury proposal a moderate risk rating based on the firm’s failure to include various management plans in its proposal. Noting that the RFP did not require offerors to include such plans in their proposals, Ashbury asserts that the agency should have advised it during discussions that the plans were required. The protester notes further that the agency raised this specific concern with Horus.
Ashbury’s proposal’s moderate risk rating, and the reasons underlying it, were specifically referenced in the agency’s source selection decision as the sole technical discriminator for selecting Horus’s proposal (rated low risk). There is no indication that the agency ever determined that this lower rating was considered only a minor matter; indeed, it was the only evaluated difference in the technical proposals, and, based on the record, appears to have been a material concern to the agency. GAO thus finds no merit in the agency’s contention that Ashbury’s lower risk rating did not have to be raised during discussions because it was not a significant proposal weakness. The protest is sustained.