Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: Technical Evaluation
General Counsel P.C. Highlight: Mere disagreement with the agency’s evaluation is not sufficient to call it into question.
Birdstrike Control Program (BCP) protests the issuance of a purchase order, by the Department of the Air Force, under a request for quotations (RFQ), for wildlife control services at RAF (Royal Air Force) Lakenheath and RAF Mildenhall, United Kingdom (UK).
The RFQ was issued for wildlife control services for Air Force units operating airfields at RAF Lakenheath and RAF Mildenhall, UK. Award was to be made on a lowest-priced, technically acceptable basis. With regard to the technical evaluation of quotations, the RFQ provided that the evaluators would assign ratings of acceptable or unacceptable with regard to six subfactors: (1) transition plan, (2) mission support plan, (3) qualification, (4) management procedures, (5) past experience, and (6) training. The RFQ further provided that if a quotation received a rating of unacceptable with regard to any one subfactor, the entire quotation would be rated unacceptable.
The RFQ included quotation preparation instructions that advised, as is pertinent here, that firms were required to include a list of all hazardous materials to be used during contract performance. With regard to technical acceptability, the RFQ provided that missing required documentation could form the basis for the assignment of an unacceptable rating. With regard to evaluation of technical subfactor 2, mission support plan, the RFQ provided that quotations had to be comprehensive and complete and “must fully address your comprehensive FOD [foreign object damage] control plan, Equipment/Facility management, Birdstrike response and training, HAZMAT materials and management of resources.”
Three quotations were received by the due date, including a quotation from BCP. The technical evaluation team (TET) found BCP technically unacceptable with regard to four evaluation subfactors: mission support team, qualification, management procedures, and training.
BCP challenges the TET’s finding of unacceptability with regard to each of the four technical evaluation subfactors identified in the TET Report. GAO states that in reviewing a protest challenging an agency’s technical evaluation, it will not reevaluate the quotations; rather, it will examine the record to determine whether the agency’s evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. Mere disagreement with the agency’s evaluation is not sufficient to call it into question.
The record shows that BCP was found technically unacceptable under the mission support plan subfactor for failing to discuss the firm’s handling of HAZMAT materials. According to the protester, this finding was unreasonable because it indicated in its quotation that it did not intend to use HAZMAT materials in performing the contract, and, therefore, it was not required to include information in its quotation relating to HAZMAT materials.
The record shows that the agency found inconsistencies in BCP’s quotation that gave rise to a concern that the firm had failed to meet the RFQ requirement for information relating to its potential use of HAZMAT materials. On the one hand, BCP’s quotation represented that it did not intend to use HAZMAT materials in performing the contract, and therefore it included no information relating to HAZMAT materials. However, the record shows that the agency evaluators were concerned because, although BCP had represented that it would not use HAZMAT materials, some of the techniques identified in its quotation clearly called for the use of such materials. The record thus shows that, because of this inconsistency in its quotation, the evaluators rated BCP’s quotation unacceptable under the mission support plan subfactor.
BCP asserts that the language in its quotation relied on by the TET concerning the methods BCP would employ did not indicate that BCP would actually use those methods, but rather was merely an indication that BCP was familiar with these methods. GAO finds that the quotation was unequivocal in representing that BCP “is familiar with and utilizes all forms of wildlife active and passive management techniques . . . .” The plain meaning of this language, as reasonably understood by the evaluators, is that BCP intended to utilize the techniques listed; including those that the evaluators found would involve HAZMAT materials. GAO therefore concludes that the agency’s evaluators acted reasonably in finding that BCP’s quotation was unacceptable for failing to include information relating to its handling of HAZMAT material in light of the plain language of the firm’s quotation.
BCP further asserts that the particular methods cited by the TET–pyrotechnics, scaring cartridges, and repellants–do not involve use of hazardous materials. BCP relies on Air Force guidelines, including AFI 32-7086, Hazardous Materials Management, listed in the RFQ, which provide that the definition of hazardous materials does not include munitions or hazardous waste. The agency, however, points out that the definition of hazardous materials in AFI 32-7086 is not controlling because the RFQ provided that, if compliance with the Air Force guidance conflicts with compliance with country-specific governing standards, the RFQ required compliance with the country-specific provisions. The agency notes that Clause 1.28.1 of the performance work statement (PWS), “Control and Handling of Hazardous Materials,” makes the contractor responsible for compliance with the UK Health and Safety at Work Act of 1974 and the UK Environmental Protection Act of 1990. BCP has not submitted any information to show that the agency’s evaluators are incorrect regarding what constitutes hazardous materials under the UK statutes and regulations, but only generally disagrees with the agency’s position. Such disagreement, without more, does not provide a basis for GAO to find the agency’s evaluation unreasonable. The protest is denied.