Link: GAO Decision
Agency: Department of State
Disposition: Protest Sustained.
- In a negotiated procurement which provided for award on a best value basis, a source selection official’s (SSA) selection of a lower-priced proposal over a higher rated proposal on the basis that the two offers are essentially technically equal is not reasonable, where the SSA’s judgment as to why the two offers are essentially equal is not adequately explained in the record and otherwise appears inconsistent with the contemporaneous evaluation record.
- Protest challenging the awardee’s increased evaluation ratings is sustained, where there is inadequate documentation to establish why the awardee’s ratings were increased.
General Counsel PC Highlight:
Clark/Foulger-Pratt JV (Clark/F-P) protested the award to B.L. Harbert International, LLC of a contract for pre-construction services and construction of a new embassy in London, England. The procurement was conducted in two phases: firms would pre-qualify in Phase I, and then pre-qualified firms would receive the RFP and be invited to submit proposals under Phase II. During Phase I, firms were evaluated under six factors, and had to demonstrate experience with projects of similar cost and complexity, as well as pre-construction Early Contractor Involvement (ECI) services. All six firms who submitted pre-qualification packages advanced to Phase II. The RFP provided for award of a “fixed-price, incentive-successive” contract on a best-value basis. Although the RFP informed offerors that the agency would “evaluate the extent to which the past and present performance of the offeror demonstrates conformance to specifications and compliance with contract terms and conditions,” offerors were not instructed to provide any additional past and present performance information in their proposals beyond that submitted in Phase I.
After viewing the TEP’s consensus evaluation report, the SSA decided to conduct both written and oral discussions. After accepting revised proposals, the TEP improved several of Harbert’s ratings and stated, without further explanation, that Harbert had corrected the weaknesses identified. The TEP also found that Clark/F-P had corrected its weaknesses, but did not change any of Clark/F-P’s ratings. The TEP, even after meeting with the SSA to discuss their differing opinions, was unable to reach a consensus as to which firm to recommend for award. Two best value recommendations were prepared, with a majority of the TEP (three voting members and the non-voting chair) recommending the higher-rated, higher-priced proposal of Clark/F-P be selected. After reviewing the two recommendations, along with the initial and final consensus evaluation reports, the SSA concluded that the two proposals were “essentially technically equal” and selected Harbert on the basis of its lowest price.
The GAO agreed with Clark/F-P that the SSA’s determination that the two firms’ proposals were essentially technically equal was inadequately documented in the record. It noted that the record did not explain why the strengths identified in Clark/F-P’s higher rated proposal did not reflect technical superiority that should have been considered in a cost/technical tradeoff analysis, where the RFP provided that technical merit was more important than price. Although the TEP could not agree on a consensus best value recommendation, the GAO found no documentation in the record that any member of the TEP believed that the two proposals were technically equal. Furthermore, strengths attributed by the minority recommendation to Harbert’s proposal did not appear in the TEP initial or final consensus evaluation reports or anywhere else in the contemporaneous evaluation record.
The GAO also upheld Clark/F-P’s challenge to the agency’s evaluation of Harbert’s final revised proposal, where the agency increased Harbert’s ratings from good to excellent under several areas. The GAO agreed that there was no documentation in the record explaining how Harbert’s revisions adequately addressed the weaknesses in its initial proposal. Although the agency had exercised its authority to override the automatic stay on the basis of the best interests of the United States, the GAO recommended that it reevaluate Harbert’s proposal and make a new selection decision. If Harbert’s proposal is found to not reflect the best value, it recommended that the agency terminate the contract and make a new award.
Disappointed offerors should always request a debriefing so as to better understand how its proposal was evaluated and to ensure that the proposal was evaluated in accordance with the stated criteria. While the agency is not required to document every single aspect of their evaluations, there must still be adequate documentation to support their decisions. While merely disagreeing with the agency’s award decision is insufficient to sustain a protest, if there is not adequate support for that decision, the disappointed offeror may have grounds for a protest.