Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Friday, April 18, 2014, 6:47pm EST
McGoldrick Construction Services Corporation, B-409252.2, March 28, 2014
In theory, the government procurement process is relatively simple. A government agency determines it has a need for goods or services, and issues a solicitation to the public. The solicitation states what the agency is looking for, describes the criteria by which proposals will be evaluated, and specifies the method the agency will utilize to make its source selection decision. Contractors that think they can provide the goods or services sought will submit a proposal meeting the solicitation criteria, which is then evaluated by the procuring agency. The agency decides which proposal is best, and they award a contract. Easy enough, right?
(Cue federal contractors bursting out in laughter)
Unfortunately, anyone who has ever actually submitted a proposal for a government contract knows that things aren’t that simple. Submitting a proposal is an intensive, and often times, frustrating process. Sometimes the contractor will trip themselves up at some point in the proposal preparation or submittal process. But often times, it will be the agency that will further the frustration. One such way an agency can muck up the process is by using “unstated evaluation criteria.” A recent GAO decision provides an example of this issue.
In McGoldrick Construction Servs. Corp., the Army Corps of Engineers issued a solicitation seeking design-build firms for construction and maintenance at the Fort Hood Army installation in Killeen, TX. The agency contemplated award of multiple ID/IQ task order contracts. The solicitation stated that the procurement would be conducted in 2 phases. During phase 1, the agency would evaluate proposals based on two factors: past performance, and organization and technical approach. The agency would then select approximately ten of the best proposals to compete in phase 2 of the competition.
McGoldrick submitted a proposal, but it was not deemed to be one of the top proposals and was thus eliminated after phase 1. One of the reasons McGoldrick’s proposal was eliminated from the competition was because of an assessed “significant weakness” under the organization and technical approach factor. McGoldrick filed a protest with GAO, arguing that in assessing McGoldrick’s proposal with a significant weakness, the agency utilized evaluation criteria that were not stated in the solicitation.
GAO agreed with the protester, and sustained the protest. In its decision, GAO found that the agency’s assessment of a significant weakness to McGoldrick’s proposal was unreasonable for several reasons. The individual reasons themselves are not all that important in this case, as the key point is that the agency improperly applied a stricter standard in its evaluation of McGoldrick’s proposal than was stated in the solicitation. As an example, the agency actually penalized McGoldrick for not submitting a quality control plan, when the solicitation explicitly instructed offerors not to submit a quality control plan. GAO found this to be problematic.
Competing for government contracts is a difficult enough task on its own, so to add to that difficulty by requiring contractors to adhere to hidden requirements is just plain unfair. Fortunately, the bid protest process allows government contractors with an opportunity to keep things (somewhat) unbiased. It is important for unsuccessful offerors to scrutinize the reasons for any deficiencies, weaknesses, or significant weaknesses assessed to its proposal by a procuring agency. If an agency goes outside of the evaluation criteria stated in the solicitation, the contractor may have a sustainable protest.