Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
1. Protest challenging agency’s evaluation of a proposal for a hotel for use by applicants to a Military Entrance Processing Station as unsatisfactory because the proposed facility was located too far from the airport to meet the solicitation’s timeframes for picking up applicants is denied where the record supports the reasonableness of the agency’s determination.
2. Protest challenging agency’s decision not to set the procurement aside for exclusive small business participation is untimely when first raised after award; in any event, even though this unrestricted competition resulted in offers from more than two small business concerns, the decision not to set aside the procurement is unobjectionable where, at the time the determination was made, the agency had no reasonable expectation that offers from two responsible small business concerns would be received, and where the Small Business Administration concurred with the decision not to set aside the procurement.
General Counsel P.C. Highlight:
The protester challenges the agency’s evaluation of its proposal and contends that the procurement should have been set aside for small businesses. GAO 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.
The record shows that the source selection evaluation board (SSEB) reviewed three internet mapping sources and all indicated that the protester’s facility was more than 30 miles from the airport and all reflected a travel time exceeding 30 minutes. The agency also reports that an agency employee drove the distance between the hotel and the airport on four separate occasions with the shortest driving time measured at 38 minutes driving the posted speed limits. The agency also disagrees with the protester that the normal practice is for the hotel to receive advance notice of airport arrival information for applicants. The RFP specifically required offerors to provide a facility that was close enough to the airport that applicants could be picked up within 30 minutes of the time the applicant calls. Here, the protester simply did not demonstrate to the agency that it satisfied this RFP requirement. In addition, none of the work-around information it argues in its protest–i.e., that it could make advance arrangements for such pick ups–was set out in its proposal (even assuming the work-arounds would have been acceptable under the RFP). Based on this record, GAO thinks the agency’s evaluation was reasonable.
The protester argues that the RFP did not require the agency to reject an initial “non-conforming” proposal as unacceptable, but rather left open the possibility that an offeror could meet the terms of the RFP by the time of contract award. The RFP here required offerors to provide a narrative and supporting data to demonstrate how the offeror intended to perform the requirements, and directed offerors to pay close attention to the stated evaluation factors and subfactors. Offerors were warned that unsupported promises to comply with requirements were not sufficient. More importantly, the RFP specifically stated that a proposal receiving an “unsatisfactory” rating in any evaluation factor or subfactor would not be considered for award. Consequently, it is clear that in order to be eligible for award, an offeror had to demonstrate in its proposal that it could satisfy the RFP requirements. On this record, GAO finds that the agency reasonably evaluated the protester’s proposal as technically unacceptable, and thinks the proposal was reasonably excluded from further consideration.
In a supplemental protest, HCS also argues that the agency improperly failed to issue the RFP as small business set-aside. GAO states that as a preliminary matter, GAO thinks an argument that a procurement should have been conducted as a small business set-aside is a solicitation challenge that must be raised prior to the time set for receipt of proposals. In addition, GAO will not entertain a post-award challenge to the adequacy of a set-aside decision solely because the competition resulted in responses from two or more small businesses. The determination to set a procurement aside is prospective not retrospective.
In any event, the record shows that prior to issuing the RFP, the agency published a sources sought announcement in the FedBizOpps on January 20, 2009 and received only one response from a large business concern. The agency subsequently, with the concurrence from the Small Business Administration district office, issued the RFP for full and open competition. Moreover, the record shows that the awardee here is a woman-owned small business concern, hence the protester cannot claim harm from the decision not to set-aside this procurement. The protest is denied.