Link: ODRA Opinion
Disposition: Sustained in part, denied in part.
Keywords: Size determination, Evaluation criteria
General Counsel P.C. Highlight: The FAA is not subject to the Federal Acquisition Regulations (FAR) or the Small Business Administration (SBA) Regulations, but is governed by its own Acquisition Management System (AMS). Interpretation of AMS policy should be based on the explicit language of the AMS, but may also consider, as appropriate, the SBA regulations.
In 2008 the FAA’s William J. Hughes Technical Center issued a solicitation to award a time and materials, indefinite-delivery/indefinite-quantity contract providing second-level maintenance engineering on systems related to the National Airspace System (NAS). The competition was conducted as a 100% competitive set-aside for “socially and economically disadvantaged businesses.” The technical evaluation team (TET) received proposals from nine offerors and began the review process. Following an extensive review of the proposals based on a series of technical and price related factors, the TET awarded the contract to the Arctic Slope Regional Corp., Research and Development Solutions (ARTS). Upon receiving notice of the award, Enterprise Engineering Services, LLC (EES) filed a timely protest with the FAA’s Office of Dispute Resolution (ODRA). Thereafter, ARTS intervened in the protest.
EES’s protest was broken into two main categories, a size challenge against ARTS and a protest of the evaluation process on several grounds. ODRA examined EES’s assertion that ARTS does not meet the FAA’s Acquisition Management System (AMS) definitions of a small business or of a socially and economically disadvantaged business, although admittedly ARTS qualifies as a small business and small, disadvantaged business under the SBA’s regulations. After a lengthy discussion of references and which authority shall govern, ODRA concluded that it was proper to determine small business status under the AMS using the Small Business Administration’s criteria, which includes exceptions that apply to ARTS and therefore defeat EES’s size challenge.
EES’s protest also alleged a series of challenges to the manner in which the TET conducted its evaluation of the proposals. EES claimed that there was disparate treatment in the way the TET awarded strengths and weaknesses for understanding the statement of work (SOW) in the solicitation. ODRA concluded that EES exhibited a “clear understanding” of the SOW, but unlike the other offerors that had a “clear understanding” it did not receive a strength and thus EES was treated differently than the other offerors. EES also stated that the TET did not evaluate and treat EES’s web-based tool in the same way as other offerors that received strengths for their web-based management tools. ODRA agreed with EES on this ground as well. The rest of EES’s challenges to the evaluation process were denied by ODRA. In conclusion, ODRA recommended denial of all grounds of EES’s protest, except for the two grounds discussed above. Because these two errors were prejudicial to EES ODRA sustained the protest and recommended that EES’s technical proposal be reevaluated.