Link: ODRA Opinion
Disposition: Protest sustained.
Keywords: Evaluation factors
General Counsel P.C. Highlight: Agencies are not allowed to deviate from the stated evaluation criteria in selecting an awardee.
In 2008 the FAA’s William J. Hughes Technical Center (Center) issued a solicitation to award a Time and Materials indefinite-delivery/indefinite-quantity contract providing second-level maintenance and engineering services related to the National Airspace System (NAS). The technical evaluation team (TET) received proposals from eleven offerors and began the review process. Following an extensive review of the proposals based on a series of technical and price related factors, the contracting officer, on recommendation from the TET, determined that an award to Enroute Computer Solutions (ECS) constituted the “best value” to the Government. Upon receiving notice of the award, Evolver, Inc. (Evolver) filed a timely protest with the FAA’s Office of Dispute Resolution (ODRA).
Evolver’s protest centered around two main contentions: (1) the Center improperly evaluated Evolver’s and ECS’s proposals under the corporate experience/past performance factors by over-crediting ECS and lacking a rational basis for Evolver’s rating and (2) the Center improperly evaluated Evolver’s proposal for its program management plan by using an unstated evaluation criterion.
Evolver first challenged the TET’s rating of ECS’s corporate experience/past performance as unreasonably high and lacking a rational basis. While ODRA will not substitute its judgment for the contracting official, it will analyze the evaluation process to ensure that stated evaluation criteria are followed in arriving at the award decision. Here, ODRA found that the TET had properly evaluated ECS’s past work as meeting the standards for scope of work, but that the size of the projects were smaller and thus outside the language of the criteria used in the solicitation. On this rationale, ODRA determined that TET’s rating of ECS’s corporate experience/past performance lacked rational basis.
Next, Evolver claimed that the Center improperly evaluated its price proposal by not performing a cost analysis, conducting an improper price reasonableness evaluation, and using undisclosed evaluation criteria when evaluating Evolver’s proposed price. Principally, Evolver was concerned that the Center’s price analysis was incorrectly based on the contracting official’s determination that Evolver’s low price constituted a risk to successful contract performance. ODRA determined that the contracting official’s price reasonableness evaluation was improper because under the Acquisition Management System (AMS) price reasonableness signals the need for additional cost analysis where a significantly low price raises concerns with regard to fairness and reasonableness. As such, when Evolver’s proposed price was much lower than ECS’s, the contracting official should have requested cost data from the parties in order to perform a cost analysis as to whether there were any risks associated with the low proposed price. Since this was not done during this procurement, the ODRA again agreed with Evolver’s protest ground.
Finally, Evolver claimed that the Center used evaluation criteria not contained in the solicitation as it related to recruitment and retention of personnel. ODRA, in reviewing the record, determined that the solicitation clearly stated that salaries would not be a part of the evaluation. However, the contracting official evaluated salaries as they related to recruitment and retention of personnel under its price evaluation. Furthermore, ECS was credited in this analysis for its ability to retain qualified employees.
Thus, for the above discussed reasons, and because Evolver was prejudiced by the actions of the Center, ODRA recommended that Evolver’s protest be sustained. In addition, ODRA recommended that the Center reevaluate ECS’s and Evolver’s proposals, request cost data as necessary, and determine whether Evolver’s proposal under the new analysis is appropriate for the award.