Link: GAO Opinion
Agency: Defense Logistics Agency
Disposition: Protest denied.
Keywords: Corrective Action
General Counsel P.C. Highlight: In negotiated procurements the agency has broad discretion to take corrective action where the agency determines that such action is necessary to ensure fair and impartial competition.
The Defense Logistics Agency (DLA) issued a request for proposals (RFP) for expeditionary earth-filled protective barriers. The RFP anticipated award of an indefinite delivery/indefinite quantity, fixed-price with economic price adjustment delivery order contract, with a two-year base period and two one-year options. The RFP required offerors to submit product demonstration models (PDMs), which were to be evaluated based on a combination of testing and contractor performance certifications. Six offerors, including the protester, Infrastructure Defense Technologies (IDT), and the awardee, Hesco Bastion, Ltd. (Hesco), submitted proposals.
The offerors’ PDMs were tested and each offeror’s lab certifications were reviewed for acceptability. Following discussions, DLA made award to Hesco, concluding that its slightly lower rated technical proposal, but lower-priced proposal, provided the best value to the government. IDT filed a protest challenging several aspects of the evaluation process, including the way the agency evaluated its surge and sustainment plan and the agency agreed to take corrective action by amending the solicitation, conducting discussions with IDT and Hesco, soliciting and evaluating revised proposals, and making a new award decision.
DLA amended its RFP and advised offerors that their surge and sustainment plans should not assume or incorporate any material inventories that utilize funding under the DLA Warstopper program. The source selection authority (SSA) found that IDT’s and Hesco’s technical proposals were “largely equivalent, with IDT providing only a slight technical advantage.” However, the SSA concluded that the slight benefits provided did not warrant a payment of a higher price premium for the PDMs. The contract was awarded to Hesco. IDT challenges the reasonableness of DLA’s evaluation of the technical proposals and past performance.
GAO states that the evaluation of an offeror’s technical proposal, and its past performance, is a matter within the agency’s discretion. GAO will not reevaluate proposals but instead will examine the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statues and regulations.
IDT argues that DLA’s corrective action was improper because it was designed with the specific intent to allow Hesco to correct a noncompliant offer. GAO states that in negotiated procurements the agency has broad discretion to take corrective action where the agency determines that such action is necessary to ensure fair and impartial competition. An agency can amend a solicitation, and request and evaluate revised proposals where the record shows that the agency made the decision to take this action in good faith, without specific intent of changing a particular offeror’s technical ranking, or avoiding award to a particular offeror. GAO will not object to an agency’s proposed corrective action where the agency concluded that the award, because of perceived flaws in the procurement process was not made on a basis most advantageous to the government. DLA explains that the agency reviewed the contract file based on the allegations raised in IDT’s first protest, which led the agency to address the areas of concern involving surge, subcontracting plan, and field service life. DLA also states that certain elements of the surge plan requirements in the RFP were ambiguous and needed to be clarified, it may have improperly neglected an element of responsibility or may have failed to conduct meaningful discussions. GAO finds that the agency’s decision to address these concerns through corrective action was reasonable.
As to the assertion that Hesco did not propose a warranty that complied with the solicitation requirements, GAO finds that the agency reasonably concluded that Hesco’s warranty met the requirements of the RFP. While the awardees’ warranty included a number of qualifying conditions, it expressly stated that it was warranted for the purposes described in the RFP.
IDT also argues that DLA did not reasonably evaluate Hesco’s surge and sustainment plan, but GAO’s review of the record shows that DLA’s amended RFP prohibited offerors from using Warstopper funds and Hesco stated that it would meet the surge and sustainment requirements without use of any materials funded through the Warstopper program. GAO states that IDT’s arguments consist of mere speculation that the awardee misrepresented its surge and sustainment plan and such speculation is not a valid basis of protest.
IDT argues that DLA treated the offerors unequally in evaluating the technical proposals and past performance. GAO finds that IDT’s arguments have no merit. Finally, where IDT asserts that DLA’s award of a single contract under the solicitation did not comply with the statutory and regulatory requirements concerning multiple awards of ID/IQ contracts valued in excess of $100 million, GAO finds the protest untimely since IDT knew, at the time of award, that the agency had made a single award of an ID/IQ contract valued at more than $100 million and did not bring it up in its initial protest. GAO denies the protest.