Link: GAO Opinion
Agency: National Aeronautics and Space Administration
Disposition: Protest denied.
1. Protest challenging evaluation of awardee’s perceived overstaffing of requirement is denied where record shows that agency reasonably determined that the weakness did not reflect awardee’s lack of understanding of solicitation requirements and that consideration of the overstaffing, which was reflected in the awardee’s higher price, properly was addressed in the context of the price/technical trade-off decision.
2. Protest that source selection authority improperly double-counted awardee’s strength under past performance factor for meeting its small business subcontracting goals when evaluating awardee’s proposal under a separate technical subfactor regarding proposed small business participation is denied where record shows that source selection official’s analysis was done in the context of identifying award discriminators and was based on the logical connection between the small business participation subfactor, which considered small business goals proposed by offerors, and awardee’s history of actually meeting its small business goals, as identified under the past performance factor.
General Counsel P.C. Highlight:
Coastal generally asserts that price should have been the deciding factor for selection in this case since the two offerors were qualitatively essentially equal. According to Coastal, the source selection authority’s (SSA) decision reflects that he was straining at gnats and swallowing camels in a tortured effort to somehow justify spending more of the taxpayers’ money by awarding the contract to Wackenhut. Coastal argues that the SSA failed to reasonably consider the weaknesses identified in Wackenhut’s technical approach for Marshall Space Flight Center (MSFC), Michoud Assembly Facility (MAF), and Kennedy Space Center (KSC); gave unreasonable weight to Wackenhut’s responses to the technical scenarios; unreasonably failed to identify a discriminator in favor of Coastal under the small business participation subfactor and improperly considered Wackenhut’s past performance under this subfactor; unreasonably determined that Wackenhut maintained an advantage under the past performance factor with respect to quality service; and failed to sufficiently explain his trade-off analysis. Coastal further argues that the SSA’s award decision was the result of improper influence from a NASA KSC official, and that Coastal was not afforded an opportunity, as required by Federal Acquisition Regulation (FAR) sect. 15.306(d)(3), to respond to allegedly false adverse past performance information provided by the KSC official. GAO states that in reviewing protests of an agency’s evaluation, GAO does not reevaluate proposals, but instead examines the record to determine whether the agency acted reasonably and in accord with the solicitation’s evaluation criteria and applicable procurement statutes and regulations. A protester’s mere disagreement with the agency’s judgment is not sufficient to establish that the agency acted unreasonably.
The record reflects that the SSA conducted a detailed and thorough analysis of the offerors’ evaluated strengths and weaknesses and made a trade-off decision based on these findings. The SSA’s decision fully considered the various aspects of the offerors’ proposals, reasonably identified discriminators in Wackenhut’s favor, and addressed Wackenhut’s various weaknesses assigned by the SEB. His trade-off analysis identified the benefits associated with Wackenhut’s advantages under the non-price factors, compared them to Coastal’s lower price, and ultimately concluded that these advantages were worth Wackenhut’s extra cost. Coastal’s belief that the offerors’ proposals were essentially equal reflects mere disagreement with the agency’s determinations which, as noted above, does not provide a basis for finding the award decision unreasonable.
Turning to the specific flaws identified by Coastal regarding the SSA’s analysis, GAO begins the discussion with Coastal’s arguments that the SSA failed to reasonably consider Wackenhut’s weaknesses under the technical approach subfactor. With respect to the MAF and MSFC issues, the SSA’s conclusion that the weaknesses were very minor is consistent with the source evaluation board’s (SEB) evaluation. In a hearing held by GAO, it became apparent that the second weakness identified by the SSA under the technical approach subfactor, Wackenhut’s KSC staffing, generated significant differences of opinion among the members of the SEB team regarding the nature and scope of the concern. The SEB chairperson testified that before NASA reopened discussions with Wackenhut, the SEB spent several weeks attempting to identify firm requirements for staffing at KSC to little or no avail. She indicated that the overall KSC staffing requirement was a moving target with at least four if not five different numbers, ranging from approximately 331 Work Year Equivalents (WYE) to 421 WYEs. Notwithstanding the fact that the SEB had questions regarding the true extent of the staffing requirement at KSC, the SEB concluded that Wackenhut was overstaffed; according to the SEB, this constituted a significant weakness. While the SEB viewed Wackenhut as being overstaffed for the overall requirement, the SEB chairperson testified that the board did not know precisely where the overstaffing arose; nevertheless, some of the overstaffing was clearly linked to Wackenhut’s inclusion of launch and landing work, which was not part of the KSC basic requirement.
During discussions with Wackenhut, NASA did not identify a concern regarding Wackenhut’s general overstaffing for KSC. Rather, NASA solely asked Wackenhut to address its erroneous inclusion of staffing for launch and landing. As noted previously, Wackenhut addressed this specific concern by reducing its KSC staffing, to account for removal of the launch and landing work. Notwithstanding this reduction, the SEB concluded that Wackenhut’s proposal remained overstaffed at KSC by approximately 13 WYEs and that this overstaffing should be brought to the SSA’s attention by identifying it as a regular weakness, thereby allowing the SSA to determine what weight or significance it merits. While identifying this overstaffing as a weakness, the SEB believed it to be a minor issue, consistent with the solicitation definition for a regular weakness. The record reflects that the SEB members did not think that the overstaffing would undermine Wackenhut’s ability to perform the KSC requirements; rather, they viewed the overstaffing primarily as a concern with respect to price and its impact on agency resources.
Testimony from the SSA on this issue reflects that his analysis was consistent with the underlying basis of the SEB’s concerns. Contrary to the protester’s assertions, the record shows that the overstaffing issue had no bearing on Wackenhut’s ability to perform the KSC work and, by discounting the weakness; the SSA did not afford Wackenhut any credit regarding their ability to perform. Rather, the SSA simply recognized, as did the SEB, that overstaffing, in the end, was not a performance issue; it was a price issue, which would ultimately be factored in as part of any trade-off analysis.
Based on this record, it is evident that the SSA considered Wackenhut’s KSC overstaffing in its proper context, as an issue bearing on Wackenhut’s total price, which was ultimately factored into the SSA’s selection decision through his trade-off analysis. Nothing in the record leads us to conclude that the SSA’s determination in this regard was unreasonable or otherwise improper.
Coastal also objects to the consideration given by the SSA to Wackenhut’s significant strength for its response to the RFP technical scenarios under the technical approach subfactor. The technical scenarios were included as a basis for evaluating offerors’ understanding of the requirements and the RFP advised offerors to demonstrate their specific understanding of the requirements of this contract and the labor resources needed to successfully perform them by responding to the [seven] technical scenarios. The SEB determined that Wackenhut’s responses to the technical scenarios were a significant strength because they demonstrated an exceptional understanding of the requirements, and greatly enhance the potential for successful contracting performance. The SSA agreed with the SEB’s assessment, finding Wackenhut’s significant strength in this regard telling since it revealed the extent to which Wackenhut understood how to perform the contract. These findings were consistent with the RFP’s description of the technical scenarios, which were to provide a basis for evaluating an offeror’s understanding of the requirements.
Coastal argues that considering Wackenhut’s strength under the past performance factor in analyzing the small business participation approach subfactor was inconsistent with the evaluation criteria in the RFP and resulted in an improper double-counting of Wackenhut’s past performance strength. This argument is unpersuasive.
While it is true that the small business participation approach subfactor did not provide for evaluating offerors based on their history of meeting their proposed goals, the SSA’s analysis does not reflect a departure from the evaluation criteria or double-counting since he was not engaging in an evaluation of Coastal’s or Wackenhut’s proposals under this subfactor. Rather, he was exercising his discretion in identifying discriminators for the purpose of making an award decision. As part of his analysis, he drew a logical connection between the small business participation approach subfactor, which considers small business goals proposed by offerors and their approaches to achieving these goals, and the fact that Wackenhut had a history of actually meeting its small business goals, as identified under the past performance factor. Wackenhut’s demonstrated ability to meet its goals, a strength unmatched by Coastal, provided the SSA with an additional level of confidence that Wackenhut would actually meet the goals it proposed. This ultimately muted Coastal’s noted advantage associated with proposing to exceed the RFP’s goals for two of the small business subcategories, where the SSA concluded that Coastal’s advantage, as identified by the SEB, did not serve as a discriminator for the purposes of his award decision. GAO finds no basis to find the SSA’s judgment in this regard unreasonable, or otherwise inconsistent with the RFP.
Coastal also challenges the notion that Wackenhut had an advantage under the past performance factor with respect to the quality of service provided. The record reflects that the original SEB’s findings, which provided the basis for the SSA’s determination since they were not set aside by the Court, did in fact credit Wackenhut with a strength for its demonstrated successful performance in providing ‘high-quality’ service in Government Contracts. The original SEB did not identify a similar strength regarding Coastal’s past performance. Coastal essentially argues that in identifying this strength as a discriminator, the SSA failed to consider the fact that data contained in the Past Performance Information Retrieval System (PPIRS) reflected that Coastal had twice the number of excellent ratings as compared to Wackenhut. The SSA specifically considered this difference and concluded that the difference was not particularly meaningful since contractors cannot control the number of customers who place data into the PPIRS system. While Coastal ultimately disagrees with the SSA’s decision not to differentiate between the offerors based on the PPIRS information, the record does not demonstrate that his analysis was unreasonable or otherwise improper. The protest is denied.