Link: GAO Opinion
Agency: Equal Employment Opportunity Commission
Disposition: Protest denied.
1. Protest challenging the evaluation of technical proposals is denied where the record established that the agency’s evaluation was reasonable and consistent with the evaluation criteria.
2. Protest that agency failed to hold meaningful discussions with the protester is denied where the record does not support the protester’s contentions, and even if it did, assigning the protester’s proposal all remaining available points in the disputed areas would, nonetheless, leave the proposal with a lower technical rating, and a higher price, than the awardee’s proposal; since the protester thus would not be in line for award, it was not prejudiced by any flaw in the discussions.
General Counsel P.C. Highlight:
In challenging the adequacy of its evaluation, Exeter raises two arguments related to assessments under the technical approach subfactor. First, Exeter contends that the agency erred in its conclusion that Exeter’s proposal did not satisfy the solicitation’s Section 508 requirements. Second, Exeter complains that its overall score under this evaluation factor was unreasonably low. In this regard, the protester contends that the evaluators identified only three weaknesses–as opposed to deficiencies–yet irrationally deducted half of the available points under this subfactor. Exeter also argues that it was unreasonably downgraded under the management and staffing subfactor, despite proposing the incumbent project manager. Lastly, Exeter argues that its rating under the past performance evaluation factor was unreasonable because the agency did not consider all of Exeter’s past performance references, as the solicitation advised it would. GAO initially states that it 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.
With respect to whether the agency reached a reasonable conclusion about Exeter’s proposed compliance with Section 508 requirements, Exeter notes that it was offering the same software that it is providing currently. In addition, Exeter complains that this software has been certified as Section 508 compliant by several government agencies, including the EEOC. In particular, Exeter points out that the EEOC has used this software for the last 5 years without any claim or notice that the software is not Section 508 compliant. The EEOC, in its report, advises that it is not the Exeter software that was found to raise Section 508 compliance issues, but rather the website that Exeter submitted to the agency as a sample of its ability to comply with the requirements of Section 508. The agency asked Exeter to provide a website for testing by the EEOC’s Section 508 compliance expert, and Exeter suggested the agency review the EEOC Training Institute website, which Exeter provides currently. However, upon review of the website, the compliance expert found several examples of images missing alternative text tags. The compliance expert advised that while Exeter seems to have a good knowledge of compliance issues, the presence of errors related to basic requirements led her to recommend that the company provide additional detail about how it would meet the solicitation’s compliance requirements, and provide detailed Voluntary Product Accessibility Templates on the proposed product.
Although Exeter’s final proposal indicated that it would repeat certain system testing to demonstrate its compliance with Section 508 requirements, and provided the Voluntary Product Accessibility Template requested during discussions, the evaluators continued to express concerns about Exeter’s understanding of the requirements. In this regard, the agency–then and now–recognized that the Section 508 compliance issues raised by the tested website were easily correctible, yet contends that these issues should have been discovered by Exeter and corrected prior to review of the website. As a result, the evaluators questioned Exeter’s ability to identify and correct Section 508 compliance issues, and deducted five points from Exeter’s score under the technical approach evaluation subfactor. In GAO’s view, given that the agency has reasonably identified concerns about Exeter’s apparent ability to anticipate and correct issues surrounding Section 508 compliance, and given that the number of points deducted from Exeter’s score for this reason was minimal, GAO has no basis to question the agency’s evaluation in this area.
With respect to Exeter’s arguments about the total number of points it received under the technical approach subfactor, Exeter argues that the evaluation was unreasonable because the agency only identified weaknesses–as opposed to deficiencies. In this regard, the protester contends the agency could not reasonably deduct half of the points available under this subfactor. The record shows that with respect to the technical approach subfactor, Exeter was given the opportunity to explain its approach during discussions. In the final assessment, however, the evaluators found that Exeter failed to demonstrate that its technical solution had the ability to interface with the current EEOC financial systems. As a result, the evaluators deducted 25 points from Exeter’s score under the technical approach subfactor. It appears that Exeter is merely disagreeing with the agency’s conclusions about both the Section 508 compliance of its solution, and its interface with the EEOC’s current financial systems. GAO sees nothing in the record that leads it to conclude that the evaluator’s concerns–or the low score given the proposal under the technical approach subfactor–were unreasonable.
Exeter next argues that the EEOC’s evaluation of its proposed project manager as lacking in experience was flawed given that the individual proposed was approved by the EEOC to be the current project manager. Under the management and staffing evaluation subfactor, the RFP stated that offerors would be evaluated on their ability to effectively manage the personnel requirements to include the offeror’s ability to respond rapidly and effectively to staffing requirements, to provide and retain experienced and highly qualified key personnel, and to manage the services required. Offerors were to provide resumes for the key personnel demonstrating their experience. Exeter correctly notes that it proposed to continue with the individual currently serving as project manager for Exeter’s EEOC contract. That said, the evaluators reviewed the resume of Exeter’s project manager and concluded that because this individual had only been in the position since March 2008, and because the majority of her experience appeared to be in meeting planning, she lacked the necessary experience for the position. Consequently, the evaluators deducted five points from Exeter’s score under the management and staffing subfactor. Given the concerns expressed by the evaluators about the proposed project manager’s lack of experience, GAO cannot conclude that deducting five points from the total of 20 points available was unreasonable. Moreover, even if Exeter was awarded the full 20 points for this evaluation factor, its total score would remain lower than the higher-rated, lower-priced Kinsail proposal.
Finally, with respect to its past performance evaluation, Exeter argues that the agency’s approach deviated from the guidance in the RFP because the agency did not contact all six of the references submitted by Exeter in its proposal. The RFP here required offerors to provide at least three relevant past performance references. Nonetheless, the solicitation stated that the government would review all of the past performance information submitted by the offerors. Exeter provided a total of six references–three references related to its own performance, including the current EEOC contract, and three references related to the performance of two of its subcontractors. The agency admits that it only contacted the three references for the contracts held by Exeter, and that only two of the three references provided a response. Exeter received an excellent rating for its performance of a contract determined not to be relevant to the effort here, and a fair rating for its current performance of the EEOC contract. While the agency acknowledges that its failure to contact all of Exeter’s references may not have been in accordance with the RFP, the agency argues that Exeter was not prejudiced here because even if Exeter was awarded all the past performance points, Exeter’s point score would still be lower than Kinsail’s lower-priced proposal. GAO agrees and finds that the record shows no possibility that not contacting all of Exeter’s past performance references affected the overall outcome of this competition.
Exeter next argues that the agency failed to engage in meaningful discussions regarding the Section 508 issue in that it merely stated that Exeter had a weakness in demonstrating its understanding of the Section 508 compliance requirements without identifying the particular issues that led the agency to this conclusion. Exeter also argues that the agency raised no concerns about its proposed key personnel during discussions. GAO states that discussions, when conducted, must be meaningful; that is, discussions may not mislead offerors and must identify deficiencies and significant weaknesses in each offeror’s proposal that could reasonably be addressed in a manner to materially enhance the offeror’s potential for receiving award. Agencies are not required to “spoon-feed” an offeror during discussions; agencies need only lead offerors into the areas of their proposals that require amplification.
Here, the agency specifically questioned Exeter with regard to Section 508 compliance. While the record shows that Exeter responded to the agency’s question involving Section 508 compliance, Exeter’s response did not alleviate the agency’s concerns. Even if the agency had more specifically described its Section 508 concerns to Exeter, the fact remains that what was significant to the evaluators is that Exeter identified for agency review a website without detecting and correcting Section 508 compliance issues.
With respect to the agency’s failure to raise the lack of experience of the project manager with Exeter during discussions, the agency states that the experience of the project manager was a concern but not one that would have jeopardized Exeter’s chances for award. Here, there is no reasonable possibility that Exeter was prejudiced by the agency’s failure to raise this issue during discussions. As explained above, the agency deducted five points from the management and staffing evaluation factor and even if Exeter had been informed of the agency’s concerns it could only have improved its score by five points for this factor. Given the evaluators other concerns with Exeter’s technical capability, there is no basis in the record to conclude that the contracting officer would have selected Exeter’s proposal over the lower-priced, higher-rated Kinsail proposal. The protest is denied.