Link: GAO Opinion
Agency: Agency for International Development
Disposition: Protest denied.
General Counsel P.C. Highlight: Clarifications during a negotiated procurement cannot be used to: 1) cure proposal deficiencies or material omissions; 2) materially alter the technical or cost elements of the proposal; or 3) otherwise revise the proposal.
International Medical Corps (IMC) protests the exclusion of its proposal from the competitive range under a request for proposals (RFP), issued by the Agency for International Development (AID) for healthcare support services.
The RFP, issued under FAR Part 15, Negotiated Procurement, provided for the award of a four-year, cost-plus-fixed-fee contract for services supporting AID’s primary healthcare project in Iraq. The RFP included a detailed statement of work (SOW). Offerors were informed that award would be made on a best value basis, considering cost and the following four technical evaluation factors: technical approach; key personnel and staffing plan; management plan; and organizational capacity and past performance. The RFP said the Agency intended to make award without conducting discussions. IMC’s technical proposal received marginal ratings under the first three factors and an acceptable rating for organizational capacity and past performance, which led to an overall marginal rating. IMC’s proposal was excluded from competitive range. IMC complains that the agency improperly evaluated its technical proposal.
When asked to review an Agency’s evaluation and exclusion of a proposal from the competitive range , the GAO states that it will examine the reasonableness and consistency of an agency’s 1) solicitation criteria; and 2) application of statutes and regulations. Contracting agencies are not required to retain a proposal in the competitive range that is not among the most highly rated, or if the agency otherwise reasonably concludes that the proposal has no realistic prospect of being selected for award. A protester’s mere disagreement with an agency’s evaluation and competitive range judgment does not establish that the agency acted unreasonably.
Here, the RFP informed offerors that proposals would be evaluated on the extent to which: 1)offerors provided a feasible approach to improving the quality of primary healthcare delivery; and 2) and demonstrated the ability to implement the project rapidly and realistically and achieve “quick wins” within the first year. IMC does not dispute or address either the agency’s finding that its proposed “quick wins” timeline was unrealistic, or the finding that IMC’s proposal could not be rapidly applied in all primary healthcare clinics. IMC’s proposal merely states that it analyzed alternative models, but only provides generalized statements regarding best practices.
Additionally, GAO agrees with the agency that IMC’s proposal did not clearly explain its proposed technical approach, nor did it clearly present its staffing and illustrative performance monitoring plans. GAO states that it is an offeror’s responsibility to submit a well-written proposal, with adequately detailed information, which clearly demonstrates compliance with the solicitation requirements and allows a meaningful review by the procuring agency. Here, GAO’s review of the record illustrates that, rather than relying on a well-written explanation of its proposed technical approach, IMC appears to rely upon a dizzying array of complex diagrams, figures, tables, charts, and graphs. Several diagrams and figures are completely illegible, and résumés submitted for IMC’s key personnel are also disorganized and difficult to follow.
IMC also challenges the agency’s assessment that IMC’s proposed illustrative performance monitoring plan failed to provide higher level impact or outcome indicators. GAO agrees with the agency. IMC’s plan listed 39 so-called “indicators” and “measurements,” which simply parrot the list of deliverables in the RFP. The plan also purports to identify “intermediate” indicators and outcomes, but does not in fact identify any “higher-level” indicators as required by the SOW.
IMC complains that it was competitively prejudiced when the agency unfairly evaluated its proposal to determine its key personnel’s Arabic language skills. However, the GAO finds no reasonable possibility that IMC was competitively prejudiced in this regard. The TEC found that IMC’s proposed key personnel were acceptable, despite the concern that the individuals lacked Arabic language skills.
GAO also finds no merit to IMC’s argument that its proposal should have been included in the competitive range, because IMC proposes the lowest overall cost. Although it is true that IMC proposes the lowest cost, an agency evaluates proposals for the award of a cost-reimbursement contract based on projections of actual and allowable costs. Here, the agency found IMC’s proposed costs to be unrealistic, unbalanced, and inconsistent with the firm’s technical approach and/or program requirements.
Finally, IMC asserts that, prior to excluding its proposal from the competitive range, the agency should have sought clarifications. GAO states that an Agency may engage in “clarifications” when contract award without discussions is contemplated, but the exchanges between the agency and offerors are generally limited. By way of contrast, “discussions” occur when the agency indicates to each offeror the material weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to significantly enhance the proposal’s potential for award.
The agency may conduct such communications with an offeror to facilitate the agency’s understanding and evaluation of the proposal, or for the purpose of exploring whether a proposal should be included in the competitive range. Such communications, however, cannot be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal. GAO states that the agency was not required to seek clarifications from, or otherwise have communications with IMC, prior to the establishment of the competitive range. Moreover, the significant weaknesses and deficiencies in IMC’s proposal could not properly be the subject of either clarifications or communications before the establishment of competitive range, as this would require material revisions to IMC’s proposal. The protest is denie.