Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Proposal Revisions
General Counsel P.C. Highlight: Offerors are responsible for following explicit proposal revision instructions.
DynCorp International, LLC protests the award of a contract, under a Department of the Army, Army Materiel Command, request for proposals (RFP), for life cycle support for C-12, RC?12, and UC-35 aircraft.
The RFP contemplated the award of a primarily fixed-price contract, with a base year and four option years, for life cycle contract support (LCCS)–including maintenance, repair, servicing, modification, parts, material, tooling, equipment and management for 113 C-12, 49 RC-12 and 28 UC-35 aircraft. Award was to be made to the offeror that met the entry gate criterion of possession of, or an acceptable plan to obtain, requisite Federal Aviation Administration (FAA) Repair Station Certificates, and whose proposal represented the “best value” considering four evaluation factors: (1) technical-LCCS (with subfactors for technical approach, depot/propulsion/”over & above” work, engineering approach, business relationships/certifications, and transition); (2) past performance; (3) management; and (4) price.
Based on the initial proposals, and the offerors’ responses to agency errors, omissions and clarifications (EOC) notices to offerors, the Army conducted discussions with DynCorp (the incumbent contractor) and the eventual awardee–culminating in a request for final proposal revisions (FPR).
Although DynCorp’s evaluated price was approximately 6.6% lower than the awardee’s, the agency evaluators reported to the SSA that they were unable to determine whether DynCorp’s price was fair, reasonable, complete, or realistic for the work to be performed as a result of uncertainties arising from: (1) a greater-than-expected reduction–approximately 15% rather than the expected 9%–in DynCorp’s FPR price relative to its initial price; (2) the fact that DynCorp’s pricing spreadsheets included “circular errors,” even after the agency’s concern in this regard was raised during discussions; and (3) a Defense Contract Audit Agency (DCAA) report identifying material weaknesses in DynCorp’s estimating system.
DynCorp challenges the evaluation of its FPR on the basis that several of the assessed disadvantages with respect to its technical-LCCS proposal resulted from the agency’s failure to take into account information that DynCorp furnished in responses to agency clarification or discussion requests, but did not include in its FPR. GAO states that where a protest challenges an agency’s evaluation of proposals, it will review the evaluation record to determine whether the agency’s judgments were reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations.
DynCorp’s initial technical proposal stated that: “Upon Government approval of the maintenance plan, the Site Supervisor/Lead Mechanic takes the actions necessary to arrange and provide facilities, tools, test equipment, parts/material and other support, as required, to execute the maintenance plan.” Since the solicitation did not provide for government approval of the maintenance plan, the Army viewed DynCorp’s approach as inconsistent with the contractor’s responsibility for the development and implementation of maintenance approaches for each aircraft. In response to the agency’s request that DynCorp clarify its intent with respect to the above language, DynCorp responded that its “intent is to ensure that the Government/COR is fully informed about the facilities, tools, test equipment, parts/material, and other support required for the upcoming scheduled and unscheduled maintenance tasks.”
DynCorp asserts that the Army unreasonably failed to consider its EOC response in the evaluation. This argument is without merit. The agency specifically instructed offerors, when it first issued items for negotiation [IFN] at the commencement of discussions, that “[i]t is imperative that your FPR incorporate all changes to the proposal made by responses to the EOCs and these IFNs.” Likewise, when the agency requested FPRs at the conclusion of discussions, it again instructed offerors that “[r]evisions to your proposal as a result of these discussions, and any EOCs or IFNs, shall be clearly marked in . . . changed pages . . . . It is imperative that your FPR incorporate all changes to the proposal made by responses to the EOCs and these IFNs.” Contrary to these explicit instructions, DynCorp failed to incorporate its EOC response into its FPR, with the result that its FPR included its proposal for government approval of the maintenance plan. The Army reasonably determined that this proposal was inconsistent with the PWS.
DynCorp asserts that the Army’s evaluation of its FPR unreasonably failed to consider the prior IFN response to C-2738-IFN and the response to C?1032-EOC, wherein DynCorp stated that it would revise its proposal to indicate that the annual weight and balance records review would be performed in accordance with AR 95-1, as required by the PWS. This argument is without merit for the same reason as discussed above. That is, the Army repeatedly, explicitly instructed offerors that “[i]t is imperative that your FPR incorporate all changes to the proposal made by responses to the EOCs and these IFNs.” Although DynCorp did change section 1.1.3 of its FPR as proposed, it did not incorporate the proposed change to section 1.1.1 into its FPR. This failure created an inconsistency in the FPR as to DynCorp’s intention to comply with AR 95-1. In light of this inconsistency, the agency reasonably determined that DynCorp had not unequivocally committed itself to meet the AR 95-1 binding certification requirement, and reasonably downgraded the proposal on this basis. Based upon GAO’s review of all of DynCorp’s timely challenges evaluation, it finds no basis for questioning the evaluated superiority of the awardee’s proposal under the (most important) technical?LCCS factor.
DynCorp challenges the overall evaluation of the awardee’s past performance as good/low risk. In this regard, the RFP required offerors to furnish a description of all relevant Government and/or commercial contracts including prime contracts and major subcontracts received or performed during the past five years. Offerors also were required to provide past performance questionnaires (PPQ) to references for the identified contracts. The RFP provided that the agency would “focus its inquiries on the offeror’s and any major subcontractor’s records of performance as it relates to the solicitation requirements,” including past and current performance records concerning aircraft maintenance and parts supply; compliance with FAA regulations, and safety and airworthiness requirements; ability to perform/develop FAA Supplemental Type Certificates; ability to select, retain, train, support and replace key personnel; timeliness of performance; quality of results; and customer satisfaction, cooperative behavior and Government interface.
The awardee’s proposal identified three relevant contracts, for all of which references provided PPQs. Only one of the three contracts was viewed as indicating a moderate (rather than very low) level of performance risk. In this regard, the past performance information received by the Army indicated that a subcontractor under the awardee’s contract with U.S. Customs & Border Protection (CBP) for maintenance, logistics management and engineering support for 17 different aircraft types, used an inexperienced workforce, resulting in delivery delays, unavailable P-3 aircraft, and cost overruns. However, while the awardee was faulted for its oversight of the subcontractor, and a telephone inquiry by the Army confirmed dissatisfaction with contractor performance, both PPQs received for the contract rated overall quality of performance and schedule performance good, performance management satisfactory, and management of key personnel good (one PPQ) or satisfactory (second PPQ). In addition, the agency received reports of exceptional/excellent or good performance under the awardee’s two other relevant contracts. While, as noted by DynCorp, the poor performance of the awardee’s subcontractor and poor supervision by the awardee under its CBP contract resulted in a moderate performance risk assessment for that contract, that rating did not preclude the agency from finding that the totality of the awardee’s past performance warranted a good/low risk rating. The protest is denied.