Agency: National Aeronautics and Space Administration
Disposition: Protest Sustained
Keywords: Unstated evaluation criteria, competitive range.
Decided: May 19, 2017
General Counsel P.C. Highlight: Evaluations must not rely on unstated evaluation criteria. When assessing the competitive range, evaluation must be on specific aspects of a proposal, not based on point scores or adjectival ratings.
Summary of Facts
Pinnacle Solutions, Inc. (Pinnacle) was one of three small businesses responding to a Request For Proposals (RFP) issued by the National Aeronautics and Space Administration (NASA) for aircraft logistics, integration, engineering services, and configuration management. Relevant to the protest, the RFP included, among other things, a requirement NASA had overall authority to establish work conditions, priorities, etc., and offeror was to provide personnel to meet these goals. Because an existing collective bargaining agreement was already in place, the RFP called for offerors to submit a management plan addressing relationships with subcontractors, the offeror’s corporate philosophy, risks and mitigation approaches, and the offeror’s approach for ensuring good relations under collective bargaining agreements (CBA).
NASA received three offers. Pinnacle was assessed four strengths, one significant weakness, and eleven weaknesses. The contracting officer reviewed the offers and determined the competitive range based on point scores and adjectival ratings, as well as counting the number of strengths and weaknesses identified. The contracting officer did not look behind the scores or offer a reasoned consideration of the actual findings in the evaluations. Of the three offers, the contracting officer eliminated both Pinnacle and one other from the competitive range.
Basis for Protest
Pinnacle cites two bases for their protest: first, Pinnacle took issue with the weaknesses assessed in their proposal; second, Pinnacle argued it was improper for the contracting officer to exclude Pinnacle from the competitive range based on a mere comparison of point scores and price, and based on unsupported speculation that holding discussions wouldn’t result in a different assessment.
Unreasonable Evaluation of Proposal
The GAO first reviewed the evaluation, and, based on three examples, concluded the evaluation was unreasonable and applied unstated evaluation criteria. For example, the RFP required the executive manager have “full authority to act for the Contractor on all matters relating to the contract.” The contracting officer assigned a weakness, in that the executive manager would not have complete hiring authority, and viewed this as an indication the manager did not have “full authority.” However, the GAO found the RFP did not reasonably advise offerors executive managers must have complete hiring authority. This, the GAO held, was “at best, a latent ambiguity.”
As a second example, Pinnacle was awarded a weakness for its approach to managing scheduling and breaks. NASA, in evaluating a weakness, noted Pinnacle’s approach, which included both setting and posting their policy regarding breaks, was as ineffective as posting a highway speed limit sign to “ensure that motorists will not speed.” The GAO found this evaluation was unreasonable. The RFP did not require offerors include enforcement mechanisms. Thus, an evaluation which considered enforcement of the policies was beyond the scope of the evaluation criteria.
Finally, Pinnacle was awarded a significant weakness for having two CBA’s without any consideration of Pinnacle’s proposed steps to limit risks involved. The evaluation did not acknowledge Pinnacle’s proposed steps, nor did it establish the steps were insufficient to mitigate risk. Because this assigned weakness was unjustified based on a review of the record, Pinnacle’s challenge to the evaluation was upheld.
Competitive Range Determination
The contracting officer made their competitive range determination based on point scores, adjectival ratings, and price. The contracting officer also expressed that discussions with Pinnacle would be of no use, without review of the specific aspects of the proposal.
The GAO has previously held, and held again in the case at bar, reliance on adjectival ratings or point scores is not proper when making competitive range decisions. Rather, such decisions must be made on the evaluation of specific aspects of an offeror’s approach.
Given the above, the GAO recommended NASA reevaluate Pinnacle’s proposal, relying on the stated RFP criteria. Should the RFP need clarification regarding the basis for evaluation, the offerors should be given an opportunity to revise their proposals. Upon completion of the reevaluation, the GAO recommended NASA make a new competitive range determination. Next, if NASA finds additional proposals are included in the competitive range, meaningful discussions should be had equally with all offerors. Finally, the GAO recommended NASA reimburse Pinnacle for costs related to the protest, including reasonable attorneys’ fees.
For more information on timely filing, assistance with a potential bid protest, or general government contracts legal representation, please visit our website, our publication, the Bid Protest Weekly, or contact us at 703-556-0411.