Written by Sharon O. Steele, Chair of the Government Contracts Practice Group
Link: GAO Decision
Protestor: Crowley Logistics, Inc.
Agency: Department of Defense, U.S. Transportation Command
Disposition: Protest Sustained in part; Denied in part
GAO Digest:
Where the agency did not convey its concern regarding what was evaluated as a significant performance risk, thus denying the protester an opportunity to meaningfully respond to the issue, GAO sustained the protest.
The protest challenging the agency’s evaluation of the awardee’s technical proposal was denied where the record reflects the evaluation was reasonable and consistent with the solicitation’s evaluation criteria.
General Counsel, P.C.
Crowley Logistics, Inc. protests the contract award to GENCO Infrastructure Solutions, Inc. for freight transportation services. The solicitation, issued on an unrestricted basis, contemplated the award of a single indefinite-delivery/indefinite-quantity, fixed-price-with-economic-price-adjustment contract with a two-year base period and five one-year options. The solicitation provided that the award would be made on a best-value tradeoff basis, considering five factors: corporate experience, business proposal, technical capability, past performance and price. Following the initial evaluation of Crowley’s proposal, the agency sent four evaluation notices (EN) to Crowley identifying areas such as: areas of shipment loss/damage mitigation, claims processing, low volume/low frequency sits, and staffing. Hence, none of the ENs identified areas pertaining to the early identification of resolution of performance issues or Crowley’s approach to being proactive with issue identification. Nevertheless, the agency documented its view that Crowley’s lack of response to being proactive in identifying issues as a shortcoming that “could cause degradation in performance throughout the life of the contract.” GAO concluded that when an agency finds that the risk associated with the given aspect of an offeror’s proposal may jeopardize successful performance of a contact, it represents a significant weakness, regardless of the fact that the agency did not expressly characterize it as such. GAO sustained this part of Crowley’s claim because: 1.) in its initial evaluation, the agency documented concern over whether Crowley would be proactive in identifying issues before agency notification; 2.) the agency did not raise this issue in discussions but instead documented it as a significant performance risk; and, 3.) the issue was a material factor in the agency’s best-value tradeoff, demonstrating prejudice to Crowley.
Crowley also protested the fact that GENCO’s proposal did not address various tasks listed in the performance work statement and that the agency therefore should have evaluated the proposal as unacceptable. GAO reviewed the evaluation to determine if it was reasonable, consistent with the solicitation’s evaluation scheme, as well as procurement status and regulations, and adequately documented. GAO concluded that Crowley’s protests concerns reflect only disagreement with the agency’s subjective evaluation judgements, and therefore denied this portion of the protest.
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Written by Sharon O. Steele, Chair of the Government Contracts Practice Group