Link: GAO Opinion
Agency: Department of Commerce
Disposition: Protest denied.
Keywords: Technical Evaluation; Cost Evaluation
General Counsel P.C. Highlight: In reviewing protests challenging an agency’s evaluation of quotes, GAO will not conduct a new evaluation or substitute our judgment for that of the agency; rather it will examine the record to determine whether the agency’s judgment was reasonable and consistent with the solicitation’s evaluation criteria.
AWS Convergence Technologies, Inc. (AWS) protests the award of a contract by the Department of Commerce, National Oceanic and Atmospheric Administration (NOAA) to Global Science & Technology, Inc. (GSTI), under a request for quotes (RFQ), for expanding the National Mesonet Pilot Project of 2009 by building an infrastructure in urban and non-urban areas throughout the United States capable of collecting environmental data.
The agency issued the RFQ pursuant to Federal Supply Schedule (FSS) procedures via the GSA e-Buy website. The RFQ provided that award would be made to the vendor with acceptable past performance whose quote was found to represent the best value to the government, based on the evaluation of technical/management quotes and price.
With regard to the network operator relationships subfactor (subfactor 8), which was one of the most important subfactors, AWS’s quote was rated marginal. The TET found that AWS’s quote did not include a definition of the vendor’s interpretation of urban and non-urban areas, which was a “significant detractor” to understanding how AWS’s approach satisfied the fiscal year 2010 appropriation language that required 75% of the funds to be used to expand urban areas. In contrast, GSTI’s quote was rated excellent under the network operator relationships subfactor, because the quote “offered a current and vetted definition of urban” from a recent National Academy of Sciences publication and identified a procedure to apply this definition to the allocation of sites, to ensure that 75% of the funds would be spent on expansion in urban areas.
The contracting officer determined that AWS’s price did not demonstrate an understanding of the 75/25% distribution of funds requirement, and that AWS’s quoted price was therefore unreasonable. In contrast, GSTI’s lower price was found to be reasonable.
AWS argues that GSTI’s quote failed to comply with the solicitation’s 75% funding requirement; failed to comply with a solicitation requirement concerning spatial and temporal resolution; exceeded page limits; was not submitted through the E-Buy portal; and included services that were not on the firm’s FSS contract. AWS also asserts that the agency conducted unequal discussions. GAO states that in reviewing protests challenging an agency’s evaluation of quotes, it will not conduct a new evaluation or substitute our judgment for that of the agency; rather it will examine the record to determine whether the agency’s judgment was reasonable and consistent with the solicitation’s evaluation criteria, and with procurement statutes and regulations.
AWS first asserts that GSTI’s quote should have been evaluated as technically unacceptable “for its failure to comply with mandatory NOAA requirements for 75% of data acquisitions from urban geographical areas.” However, AWS’s argument misinterprets the solicitation. The RFQ did not require that 75% of “data acquisition” come from urban areas; rather, the solicitation required only that 75% of the appropriated “funds” be allocated to urban areas. The record confirms that GSTI’s quote complied with this requirement.
AWS also objects to GSTI’s reliance on Census data to define what constitutes urban areas, contending that this essentially “eliminates any distinction between ‘Urban’ and ‘Rural'” and defeats the Congressional mandate that 75% of the funding be used for expansion of the pilot program in urban areas. The RFQ did not define the term “urban,” but left the definition to the vendors to explain when describing how they were going to meet the expansion requirement. The protester has not shown that its preferred definition was required by the RFQ, or that GSTI’s definition was prohibited or unreasonable. To the extent that the protester asserts that the agency’s failure to define the term “urban” created an ambiguity in the RFQ, the ambiguity was patent and is untimely raised.
AWS next contends that GSTI’s quote should have been disqualified because it did not provide for a spatial resolution of less than five kilometers every 15 minutes or less, which the protester claims was required by the RFQ. As the agency explains, spatial and temporal resolution parameters were provided on the first page of the RFQ as background information regarding the long term goals of the National Mesonet Pilot Project and were not requirements of the RFQ. Reading the RFQ section as a whole, GAO finds that it was reasonable for the agency to interpret this RFQ provision as a statement of long term goals, and not as an expression of a formal solicitation requirement.
The protester also contends that GSTI’s quote exceeded the 25-page limit set forth in the solicitation, because it included a 26th page containing price information. However, the contracting officer explains that GSTI’s quote complied with the 25-page limit; the additional page was provided in response to the agency’s request for supplemental information and was not included in the page count. Since AWS also provided supplemental information that was not included in the page count, the protester was not prejudiced by the agency’s actions.
AWS contends that the award was improper because GSTI’s FSS contract does not specifically include preparing implementation reports, which is a required CLIN here. GAO states that an agency may not use FSS procedures to purchase items that are not listed on a vendor’s GSA schedule. When a concern arises that a vendor is offering services outside the scope of its FSS contract, the relevant inquiry is whether the services offered are actually included on the vendor’s FSS contract, as reasonably interpreted. Here, GSTI stated that it would satisfy the solicitation’s requirements using its GSA schedule 871 contract for professional engineering services. This contract includes special item numbers (SINs) for, among other things, strategic planning for technology programs and activities (SIN 871-1); concept development and requirements analysis (SIN 871-2); and system design, engineering and integration (SIN 871-3). As the agency explains, and GAO agrees, these SINs provide for the performance of various analysis and studies that implicitly include drafting and submitting reports, including implementation reports of the type required here. Since the preparation of implementation reports is within SINs listed on GSTI’s FSS contract, GAO denies this aspect of AWS’s protest.
AWS also contends that the agency should have rejected GSTI’s quote because it was not properly submitted through the E-Buy portal. However, the protester does not cite to any provision in the solicitation requiring that vendors submit their quotes only through the e?Buy portal. In fact, the RFQ requires only that vendors submit one original and 10 copies of their technical quotes, and is silent on the method of delivery. Because the protester has not sufficiently alleged that the awardee’s method of submission was prohibited by the terms of the solicitation or by any procurement law or regulation, GAO denies this protest ground.
Finally, the protester contends that the agency conducted improper discussions only with GSTI. GAO states that where, as here, a competition is conducted among FSS vendors pursuant to Federal Acquisition Regulation (FAR) Part 8, there is no requirement for agencies to conduct discussions in accordance with FAR § 15.306. However, exchanges with vendors in a FAR Part 8 procurement, like all other aspects of an FSS evaluation, must be fair and equitable. The record confirms that the agency engaged in nearly identical exchanges with AWS and GSTI on these issues. In this regard, the protester was asked both to separately price each sub-CLIN, and to discuss how a possible reduction in CLIN 1 funding would affect performance. Therefore, GAO finds no basis to conclude the exchanges were other than fair and equitable. The protest is denied.