Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Technical Evaluation
General Counsel P.C. Highlight: . GAO reviews challenges to an agency’s evaluation of proposals only to determine whether the agency acted reasonably and in accord with the solicitation’s evaluation criteria and applicable procurement statutes and regulations.
Cornerstone Construction Company, Inc. protests the award of a contract, by the Department of the Army, under a request for proposals (RFP) for the design and construction of an aero-medical services and mental health clinic.
The agency issued the RFP under a fixed-price contract. The project was a design-build project, where the RFP provided design requirements and requested that offerors propose a design consistent with those requirements. The RFP contained a detailed statement of work that included minimum design and construction criteria, along with “room criteria sheets” that provided additional detail concerning usable space, and numerous drawings and attachments, including drawings that depicted four staircases in the clinic building. The RFP stated that award would be made to the offeror whose proposal conforms to the solicitation, is fair and reasonable, and provides the best value to the government, considering design-technical, remaining performance capability, and price.
In concluding that the awardee’s proposal provided the best overall value to the government, the source selection authority (SSA) determined that the technical merits and lower ratings of Cornerstone’s proposal did not justify paying a higher price when compared to the awardee’s higher-rated and lower-priced proposal, especially given the more aesthetically desirable design presented by the awardee.
Cornerstone argues that the awardee’s proposal deviated from the RFP. Cornerstone also asserts that the agency improperly considered cost in the evaluation of technical proposals, and it asserts numerous other examples of a flawed evaluation or unequal treatment. GAO reviews challenges to an agency’s evaluation of proposals only 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 an agency acted unreasonably.
Cornerstone contends that the awardee’s proposal was unacceptable under the utilization of small business subfactor of the remaining performance capability factor. The protester argues that the RFP required, and the awardee’s proposal failed to include, specific information about small business participation under its proposal. GAO states that although the RFP required the agency to consider the extent to which small businesses were specifically identified in the proposal and the role that the subcontractors would play, the RFP did not require firm commitments from offerors concerning the use of any particular subcontractor. Neither firm provided firm commitments from the subcontractors identified in their proposals. Given the design-build nature of the project, considering that the RFP did not require a firm commitment to use identified subcontractors, and given the detailed information provided by the awardee in its proposal, GAO finds the Corps’ determination that the awardee submitted an acceptable proposal regarding its plans to utilize small businesses to be reasonable and not the result of unequal treatment.
Cornerstone next argues that its clinic design met an RFP requirement to provide four staircases, while the awardee’s design included only three staircases. GAO agrees with the Corps that although the RFP advised offerors not to deviate from the accompanying design without government approval, the RFP also advised that offerors could nevertheless propose “changes to the design via Contractor-Proposed Betterments to improve constructability, functionality, and value to the Government.” The record shows that, in accordance with the RFP, the Corps appropriately considered the awardee’s proposed change to the design and reasonably determined that three staircases were sufficient to meet the requirements of its building design. Although Cornerstone disagrees with this assessment, it has not shown it to be unreasonable.
Cornerstone also argues that the awardee’s proposed design deviated from mechanical access requirements because the design failed to allow for unhindered, interior access to rooftop air handling units. GAO finds that Cornerstone’s argument is based on a misreading of the RFP requirements. Although the RFP contained a drawing that depicted a rooftop unit as being connected to stairs, there was no requirement in the technical specifications that the unit be constructed adjacent to stairs. Rather, the RFP required only that access to rooftop air handling units be unhindered and constructed to prevent snow and weather from entering the unit, and that the units be adjoined to a service corridor. The Corps determined that the awardee’s approach met the RFP requirements and, based on a review of the record, GAO finds this determination to be reasonable.
Cornerstone asserts that the Corps improperly and disparately considered price or cost in the evaluation of the technical merits of proposals. However, the RFP contemplated a best value analysis, and the record shows that the agency considered price or cost only in this context; that is, the agency considered the price advantages and disadvantages of offerors’ technical approaches in a manner that was reasonable and consistent with the RFP. GAO finds no evidence of unequal treatment in this aspect of the evaluation.
Cornerstone asserts unequal treatment in the conduct of discussions. Specifically, Cornerstone argues that the awardee was provided more detailed discussions and an additional round of discussions as compared to the discussions provided to Cornerstone. GAO’s review of this aspect of the evaluation shows that the discussions were tailored to each offeror’s proposal consistent with the requirements of the Federal Acquisition Regulation, and the varying detail reflected the different concerns the agency had with each offeror’s approach. The protest is denied.