Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Protest that agency misevaluated protester’s quotation under key personnel and professional staff factor is denied where record shows evaluation was unobjectionable.
General Counsel P.C. Highlight:
ITT first asserts that the agency’s assignment of an exceptional rating to Northrop’s proposal under the mission capability factor “was unreasonable because [Northrop’s] D-ILS system has never been flight inspected in the United States in accordance with FAA Order 8200.1C.” GAO states that agencies are required to evaluate offers in accordance with a solicitation’s stated requirements. Where a dispute exists as to a solicitation’s actual requirements, GAO will first examine the plain language of the solicitation.
In asserting that the solicitation provided that proposed solutions were to have been flight inspected in accordance with FAA Order 8200.1C, ITT relies on section 188.8.131.52 of the solicitation’s SRD, titled “Sited Performance.” As quoted above, that provision states that, “[w]hen sited . . . the D-ILS azimuth component shall be capable of providing performance equivalent to that of a fixed Category I ILS localizer installation that employs a 14-element single frequency log periodic dipole antenna array,” and adds that “equivalent” performance includes compliance with the criteria in FAA Order 8200.1C. The solicitation provision, which identifies the mandated performance requirements, prefaces those performance requirements with the plain language “when sited.” Accordingly, it is clear that offerors were required to offer a system that, when sited, will perform in the manner specified. Indeed, as the agency points out, ITT’s own proposed solution, which is a modification of fixed-site ILS, has not yet been flight inspected, since, like Northrop’s, that system does not yet exist. Accordingly, ITT’s protest challenging the agency’s evaluation of Northrop’s proposal on the basis that Northrop’s proposed solution has not yet been flight inspected against the specified criteria is without merit.
ITT’s protest also asserts that the agency’s evaluation of Northrop’s proposal under the mission capability factor was unreasonable because Northrop’s proposed localizer “provided the Air Force with no actual benefit.” GAO states that in reviewing a protest against an agency’s evaluation of proposals, 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 statutes and regulations. A protester’s mere disagreement with the agency’s judgments in its evaluation does not establish that the evaluation was unreasonable.
While expressing disagreement with various aspects of the agency’s evaluation, ITT has provided no substantive basis to question the agency’s analysis or conclusions regarding the two offerors’ proposed technology. Accordingly, GAO rejects ITT’s assertion that the evaluation of Northrop’s proposal was unreasonable because Northrop’s proposed localizer will provide “no actual benefit” to the agency.
ITT next protests the agency’s evaluation of ITT’s proposal under the past performance factor asserting that assignment of an unknown confidence rating was unreasonable. GAO states that in evaluating offerors’ proposals, an agency may properly consider specific, albeit not expressly identified, matters that are logically encompassed by or related to the stated evaluation factors. Further, GAO has specifically concluded that the size of a prior contract is a proper consideration in comparing the similarity and complexity of a prior contract to the procurement at issue. Finally, the evaluation of offerors’ past performance is a matter within the contracting agency’s discretion, and a protester’s mere disagreement with the agency’s judgment is insufficient to establish that the agency acted unreasonably.
The solicitation required each offeror to submit past performance information for the five most relevant efforts that had been performed during the past 10 years by the offeror and its significant subcontractors. Section M of the RFP provided that, in order for a prior contract to be considered, it must be both recent and relevant. The record shows that ITT submitted information regarding its own prior contracts and prior contracts of its subcontractor. The agency’s performance confidence assessment group (PCAG) evaluated the information and ultimately concluded that the efforts performed under the prior contracts were not sufficiently similar to the efforts required under this solicitation (in terms of magnitude, complexity, technology, and the type of effort required) so as to enable the assignment of any substantive confidence assessment. Accordingly, the PCAG assigned a rating of unknown confidence “[b]ased on the offeror’s sparse performance record.” In considering ITT’s prior contracts, the PCAG considered, among other things, the dollar value of those contracts as compared to the expected value of the contract here, concluding that the value of all contracts and the value of ITT contracts represented mere fractions of the expected value of the protested contract. Accordingly, the agency concluded that none of these significantly smaller contracts provided a basis for making any substantive confidence assessments.
ITT protests that the agency improperly applied an unstated evaluation factor because the solicitation “did not state that the dollar value of an offeror’s past performance reference would be factored into the Air Force’s past performance evaluation.” The solicitation specifically advised offerors that the agency’s performance confidence assessments would incorporate consideration of the similarity and complexity of the prior contracts submitted for evaluation. Further, section L of the solicitation required offerors to provide the dollar value for each contract submitted. On this record, GAO finds no basis to question the agency’s consideration of the dollar value for each prior contract, since the solicitation stated that the agency would consider the similarity and complexity of those contracts, and consideration of the prior contract values is reasonably subsumed within those criteria.
Finally, since the solicitation expressly advised offerors that an unknown confidence rating would be assigned to an offeror “without a record of relevant past performance,” or when past performance information is “so sparse that no confidence assessment can be reasonably assigned,” GAO rejects ITT’s assertion that the agency was obligated to make a substantive confidence assessment based on the existence of past performance information that had some, but limited, relevance to this procurement.
ITT next protests the agency’s evaluation of Northrop’s proposed cost/price, complaining that the agency “did not adjust [Northrop’s] total evaluated cost to account for significant, identified performance risks.” GAO states that where, as here, an RFP provides for the award of a fixed-price contract, the contracting agency may not adjust offerors’ prices for purposes of evaluation. Although an agency may evaluate whether an offeror’s fixed-price proposal is unrealistically low, and thereby poses a risk of unsuccessful performance, this evaluation is an assessment of the risks regarding the technical proposal.
The solicitation required that all pricing must be submitted on a fixed-price basis. Accordingly, ITT’s assertion that the agency “irrationally” failed to “upwardly adjust” Northrop’s proposed cost/price constitutes an argument that the agency should have evaluated Northrop’s proposal in a manner expressly prohibited by law, as well as contrary to the explicit terms of this solicitation. ITT’s protest in this regard is without merit.
Finally, ITT asserts that Northrop’s selection for award was flawed because the agency failed to reasonably evaluate ITT’s and Northrop’s proposals under CLIN 0012, the cost-reimbursement CLIN for post-testing refurbishment of two pre-production units. The record shows that ITT proposed [deleted] for CLIN 0012 and that Northrop proposed only [deleted]. ITT asserts that “while ITT’s cost proposal included realistic proposed cost estimates to perform this work, [Northrop’s] cost proposal did not,” and maintains that the agency failed to “make appropriate cost adjustments” to CLIN 0012 of Northrop’s proposal. GAO states that competitive prejudice is an essential element of every viable protest. Where no possibility of prejudice is shown or is otherwise evident from the record, GAO will not sustain a protest, even if a deficiency in the agency’s evaluation is apparent.
ITT’s final evaluated cost/price for this procurement was $62,307,000; Northrop’s final evaluated cost/price was $57,085,000. Thus, even if the agency had upwardly adjusted CLIN 0012 of Northrop’s proposal to reflect what ITT asserts was a realistic amount; Northrop’s evaluated cost/price would have remained substantially lower than that of ITT. Accordingly, even if the agency should have upwardly adjusted Northrop’s proposed costs under CLIN 0012, Northrop’s proposal would have remained the technically superior, lower-priced proposal. The protest is denied.