Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
1. Protest that agency improperly made award without engaging in discussions is denied where solicitation provided for award without discussions and agency was able to discern relative merits of proposals from initial submissions.
2. Protest challenging propriety of agency’s evaluation of proposals is denied where record shows that evaluation was consistent with terms of solicitation, applicable statutes, and regulations.
General Counsel P.C. Highlight:
Chem-Spray asserts that the agency abused its discretion in failing to conduct discussions based on the firm’s offer to lower its price. However, where, as here, a solicitation expressly advises offerors that the agency intends to make award without discussions, the agency generally is free to make award on the basis of initial proposals, and is not required to hold discussions, provided there is a reasonable basis to distinguish between the proposals. The record shows that the agency had a basis for distinguishing between the proposals–although Chem-Spray’s proposal was higher-rated than Dauterive’s, this advantage was not worth its proposal’s higher price.
Chem-Spray asserts that the agency improperly found Dauterive’s proposal technically acceptable. According to the protester, Dauterive did not offer an adequate number of certified or licensed herbicidal applicators; it maintains that 12 certified/licensed applicators were required, and that Dauterive specifically identified only seven in its proposal and merely promised to have the balance at the time of performance. In support of its position, the protester cites RFP sect. M-3.B.1, under the solicitation’s evaluation criteria, as requiring the agency to consider the qualifications of proposed personnel, and to require rejection of a proposal as unacceptable for failing to propose what it maintains is the required number of certified/licensed applicators. This provision does not require a specific number of licensed applicators in order for a proposal to be found acceptable. Rather, it requires only that a proposal include a “brief overview” of a firm’s proposed employees, sufficient to provide the agency with “clear insight” into the offerors’ proposed personnel’s qualifications. In evaluating proposals under this criterion, the agency made note of the differences between the Dauterive and Chem-Spray proposals, and these differences ultimately led the agency to rate Chem-Spray’s technical proposal superior to Dauterive’s (excellent versus good). The agency’s methodology and conclusion were consistent with the evaluation criterion.
Chem-Spray maintains that portions of the performance work statement required a particular number of licensed/certified applicators. These provisions detail the requirements for crews operating boats during performance of the contract, and specify that each sprayer and boat operator shall be certified under applicable state and federal requirements. This argument is similarly without merit. Again, GAO finds nothing in the RFP that established firm requirements that offerors had to meet in order for their proposal to be found technically acceptable. Specifically, regarding the number of applicators, the statement of work provides that the number of spray crews (comprised of one boat operator and one applicator) noted in the solicitation is only a recommendation, and that the actual number of spray crews could differ during performance. Provisions that require the “contractor” to obtain all necessary permits, licenses or certifications, establish performance requirements that must be satisfied by the successful offeror during contract performance; as such, offerors are not required to satisfy the requirements prior to award, and they do not come into play in the award decision, except as a general responsibility matter. GAO Bid Protest Regulations, 4 C.F.R. sect. 21.5(c) (2009), generally preclude our review of a contracting officer’s affirmative determination of an offeror’s responsibility, except in circumstances not alleged or demonstrated here. Ultimately, whether Dauterive complies with these requirements is a matter of contract administration, which GAO will not review.
Chem-Spray asserts that the agency improperly failed to consider what it characterizes as negative information that it furnished regarding Dauterive’s performance of the Louisiana contract. This argument is without merit. The record shows that the contracting officer decided not to consider the information because it was submitted so late–it was not forwarded to the agency by Chem’Spray until January 14, 2009, well after the agency had completed its evaluation of proposals and identified the apparently successful offeror (in November 2008)–and because the RFP did not contemplate consideration of past performance information submitted by a competitor. The agency’s judgment in this regard was reasonable. GAO is aware of no requirement in applicable regulations or elsewhere–and Chem’Spray cites none–that an agency reopen an evaluation to consider information that became available only after it completed the evaluation and selected the successful offeror. The protest is denied.