Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Friday, October 25, 2013, 1:20pm EST
Coburn Contractors, LLC, B-408279.2, September 30, 2013
In competing on a federal procurement, contractors are supposed to submit their proposals according to the rules and guidelines established by the solicitation. By holding all offerors to the same set of rules, it theoretically creates a level playing field. However, the established rules are not always followed to the letter by the agency. I believe it was the immortal Rowdy Roddy Piper who once crowed, “Just when you think you have all the answers, I change the questions.” Unfortunately, contractors often feel that they are on the wrong side of this sentiment, subject to a procuring agency changing the rules as it goes along.
This was the case in Coburn Contractors, LLC, a recent bid protest decision issued by GAO. In Coburn, the Dept. of Veterans Affairs issued a solicitation for the award of a fixed-price, ID/IQ contract for construction and maintenance services. The award was to be made on a best value basis, considering price and two technical factors—experience/capability and past performance. The solicitation also required the eventual awardee to submit a list of subcontractors to be used on each individual task order issued under the contract.
In its evaluation of the protester’s proposal, the agency identified a number of strengths and only one weakness. The evaluated weakness was under the experience/capability factor, finding that the protester failed to include with its proposal a list of subcontractors. As a result, the protester received only a satisfactory overall technical rating. The agency noted that the protester’s proposal offered a slight price savings, however it also had a low technical rating as compared to other offerors. The agency determined that the protester’s lower rated proposal did not represent the best value to the government, and thus a higher-rated, higher priced proposal was selected for award.
The protester challenged the award decision, arguing that the agency utilized evaluation criteria not stated in the solicitation. Specifically, the protester asserted that the agency improperly assigned a weakness for failure to include a list of subcontractors with its proposal. The protester argued that the solicitation only required a list of subcontractors to be submitted by the eventual awardee for each task order issued under the ID/IQ contract, but did not require such a list to be included with proposals.
GAO agreed with the protester, finding that the solicitation did not instruct or inform offerors that proposals were supposed to identify or list proposed subcontractors. Thus, the agency effectively evaluated the protester’s proposal according to an entirely different set of rules than those announced in the solicitation. This resulted in an improper evaluation of the protester’s proposal, and ultimately a flawed source selection decision. GAO noted that it was uncertain how the protester’s overall technical rating would be affected by the removal of the assessed weakness, but the protester showed a reasonable possibility that it was competitively prejudiced by the agency’s improper evaluation. As a result, GAO sustained the protest.
This case serves as a good example of the requirements imposed on agencies during the evaluation process. Procurement regulations require that procuring agencies follow the rules they themselves establish in the solicitation. Where an agency changes these rules along the way, or ignores them altogether, contractors may have grounds for a successful protest.