Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Agency reasonably determined that the protester’s proposal, submitted in response to a competitive solicitation for a task order for combat support services issued under an indefinite-delivery/indefinite-quantity contract, was unacceptable, and reasonably excluded the proposal from the task order competition, where the proposal included an assumption regarding the agency’s provision of force protection to contractor employees that, considered most favorably to the protester, rendered the proposal ambiguous with regard to its acceptance of the solicitation’s material provisions regarding force protection.
General Counsel P.C. Highlight:
KBR argues that the agency’s determination that its proposal was unacceptable was unreasonable. The protester first argues that its force protection “assumption is consistent with the terms of the RFP,” and “merely describes certain circumstances KBR anticipates may occur during the course of performance and states KBR’s understanding of the manner in which the Army would respond.” The protester further argues that the Army’s determination that KBR’s force protection assumption rendered its proposal unacceptable was unreasonable because “[n]owhere in KBR’s proposal is there any explicit or implicit statement by KBR that its performance is contingent upon the [force protection assumption],” and that the “assumption can have no effect on the cost that KBR would ultimately charge to the Army” because of other RFP provisions that require Army approval under “stringently defined conditions” before the contractor can incur force protection costs. GAO states that the evaluation of proposals is a matter within the discretion of the contracting agency, and in reviewing protests against allegedly improper evaluations; it is not GAO’s role to reevaluate proposals. Rather, GAO examines the record to determine whether the agency’s judgment was reasonable, in accord with the evaluation factors set forth in the solicitation, and whether the agency treated offerors equally in its evaluation of their respective proposals and did not disparately evaluate proposals with respect to the same requirements. A protester’s mere disagreement with the agency’s judgment does not render the evaluation unreasonable.
A review of the record provides no basis to find the agency’s evaluation and rejection of KBR’s proposal unreasonable or otherwise objectionable. As explained by the parties and set forth in chapter 6 of Army Field Manual 3-100.21, “[p]rotecting contractors and their employees on the battlefield is the commander’s responsibility,” and “[t]he mission, threat, and location of contractor operations determine the degree of force protection needed.” With regard to the agency’s primary concern, GAO believes that KBR’s force protection assumption is, considered most favorably to the protester, unclear as to who determines what force protection is necessary. That is, although KBR’s assumption does not specifically state that KBR assumes that it will be able to determine or be required to have input in determinations concerning force protection, it nevertheless provides no guidance in this regard, and is thus ambiguous as to whether the assumption is consistent with, or is taking exception to, the RFP’s force protection provisions. Given that the solicitation provided that force protection would be provided in accordance with, among other things, chapter 6 of Army Field Manual 3-100.21, which provides that the combatant commander determines, based upon the terms of the manual, the force protection needed for contractor personnel, GAO finds the agency’s rejection of KBR’s proposal because of the ambiguity introduced by KBR’s assumption to be unobjectionable.
The protester argues that the agency should have allowed KBR to clarify its proposal with regard to KBR’s force protection assumption. GAO states that where a solicitation notifies offerors that contract award may be made without discussions, an agency may engage in clarifications that provide offerors with the opportunity to clarify certain aspects of proposals or to resolve minor clerical errors. Discussions, on the other hand, occur when an agency indicates to an offeror significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to enhance materially the proposals potential for award. When an agency conducts discussions with one offeror, it must conduct discussions with all offerors in the competitive range. The “acid test” for determining whether discussions have been held is whether it can be said that an offeror was provided the opportunity to revise or modify its proposal. When an offeror is given the opportunity to remove an ambiguity from its proposal, especially where the information provided by the offeror is essential for determining the proposal’s acceptability, such an exchange constitutes discussions.
Here, had the agency communicated with KBR to resolve, considered most favorably to the protester, the ambiguity created by KBR’s force protection assumption, such an exchange would have constituted discussions. As there is generally no obligation that a contracting agency conduct discussions where, as here, the RFP specifically instructs offerors of the agency’s intent to award a contract on the basis of initial proposals, and given that the protester has not argued and we see nothing in the record to suggest that the agency’s decision not to hold discussions with offerors was improper, GAO finds no basis to object to agency’s determination here. The protest is denied.