Link: GAO Decision
Protestor: Johnson Controls, Inc.
Agency: Department of the Army, Corps of Engineers
Disposition: Protest Denied.
In procurement conducted under two-phase design-build selection procedures, protest of agency’s decision to eliminate protester’s phase 1 proposal from further competition is denied where the record shows that the agency reasonably found the proposal technically unacceptable.
General Counsel PC Highlight:
Johnson Controls, Inc. protested its exclusion from phase two of a two-phase design-build competition, pursuant to FAR Part 36.3, for the construction of projects supporting energy conservation and the development of alternative energy. Phase 1 proposals were to demonstrate an offeror’s capability to successfully execute the design-build or construction task orders under the contract. The agency sought to select 12 proposals to compete in phase 2, evaluating the offers under three factors: organizational and technical approach (the most important factor); past performance; and evidence of bondability. Johnson Controls received a deficiency under the safety and risk element, for failure to provide required OSHA forms that would enable the agency to evaluate the firm’s history of work-related injury and incidence rates.
The GAO found that the agency reasonably assigned Johnson Controls’ proposal a deficiency for failure to submit the OSHA forms, reasonably determined that the proposal warranted an unacceptable rating on that basis, and reasonably excluded the firm from further competition. It noted that the RFP put offerors on notice that the agency intended to evaluated offerors’ history of work injuries based on the OSHA forms. Although firms were allowed to provide summaries of the OSHA form data, if specific incidents occurred, they were required to provide information on the incident and corrective action taken. Because Johnson Controls’ proposal identified 86 incidents during the time period in question, it could not merely provide a summary of the OSHA data.
Offerors bear the burden of submitting a well-written proposal, adequately detailed so as to demonstrate compliance with the material terms of the solicitation. Where specific licenses, regulatory forms, or other supplemental information is required to be attached to proposals, offerors must ensure that the information is included. Failure to provide all required information will result in the assessment of weaknesses, or the exclusion of the proposal from consideration all together.