Link: GAO Decision
Protestor: Carothers Construction, Inc.
Agency: Department of the Army
Disposition: Protest Denied.
Source selection official reasonably selected higher-rated, higher-priced proposal for award where he identified technical distinctions between proposals and determined that value of advantages associated with higher-rated proposal exceeded the difference in price.
General Counsel PC Highlight:
Carothers Construction, Inc. protested the issuance to Sauer, Inc. of a task order for the design/build of an elementary school at Fort Stewart, Georgia. The RFTOP provided that the building was to be designed to achieve an energy consumption at least 30 percent below the consumption of a baseline building meeting certain minimum requirements, and advised that proposals committing to achieving energy savings of 40 percent or better might be rated more favorably. Carothers filed a protest following an initial award to Sauer, in response to which the agency took corrective action; a second protest was filed after Sauer was again selected for award. In an outcome prediction ADR, the GAO informed the agency that it would likely sustain Carothers’ protest on the grounds that the agency had treated the offerors differently by engaging in discussions with Sauer only.
The agency again took corrective action, engaging in discussions with both Carothers and Sauer, and advising them that they would be permitted to revise their proposals only to the extent necessary to respond to the items discussed. In reevaluating the proposals, the technical board raised one of Carothers’ ratings while lowering another; no ratings were changed for Sauer. In comparing the two proposals, the CO noted that Sauer proposed a greater reduction in energy consumption, and that Carothers did not propose to furnish at least 30 percent of the facility’s hot water demand with solar hot water heaters, nor demonstrate that meeting that requirement would not be lifecycle cost effective, as required by the solicitation. The CO concluded that the technical advantages of Sauer’s proposal outweighed its higher price, and that Sauer’s proposal represented the best value to the government.
The GAO disagreed with Carothers that the RFTOP did not require that offerors not proposing that 30 percent of the hot water demand be solar-heated furnish an analysis demonstrating that such a proposal would be cost ineffective. It pointed out that, even if the solicitation were unclear in this regard, the agency placed Carothers on notice during discussions that it expected that information to be included in the proposal. The GAO found without merit Carothers’ argument that the agency treated the two offerors unequally, pointing out that the agency asked them each to confirm information but that the two offerors responded differently. The GAO rejected Carothers’ argument that Sauer had failed to substantiate the increased energy reduction rate that it proposed following the final round of discussions. Finally, the GAO denied Carothers’ objections to the price/technical tradeoff analysis conducted by the agency, finding that the agency had adequately justified its selection.
Offerors bear the burden of submitting adequately written proposals that comply with all material aspects of the RFTOP. If an RFTOP dictates that proposals contain certain elements or instead provide detailed support for the decision not to include those elements, failure to comply will result in lower evaluation ratings. If the RFTOP is not clear as to what information needs to be provided, or if discussions with the agency make the criteria unclear, the offeror must seek clarification from the agency or protest the terms of the solicitation.