Link: GAO Opinion
Agencies: Corps of Engineers
Disposition: Protest denied.
Keywords: Timely performance
General Counsel, P.C. Highlight: An evaluation based on what is stated in the proposal, including ambiguities or unclear language, is reasonable. An Agency cannot be expected to know what might have been intended in a proposal if it is not clearly stated.
In September of 2009, the Army Corps of Engineers issued a request for proposals (RFP) for levee repairs in Galveston, Texas. The solicitation was for firms that held contracts under a multiple award task order contract and was for the issuance of a fixed-price task order, the awardee being the firm that submitted a technically acceptable and lowest priced bid. Kiewit Texas Construction L.P. submitted the lowest priced proposal, but it was rejected on the basis of being technically unacceptable for failing to demonstrate the ability to schedule and accomplish timely completion of the work. Thereafter, Environmental Chemical Corporation (ECC), the next lowest bidder, was issued the order and Kiewit filed a protest with GAO.
In its proposal, Kiewit proposed a start date two months after it expected contract award and three months after the Agency’s anticipated award date. This factor, in conjunction with its inability to propose a timeline within which the work would be completed in 90-days from receiving a notice to proceed, was the basis for the Corps rejecting Kiewit’s proposal. In its initial protest, Kiewit argued that since its proposal stated that it accepted the RFP’s terms, which included a requirement to start performance according to certain time constraints, that this should weigh in favor of Kiewit meeting technical acceptability. Kiewit also claimed that because firms were not told of the anticipated dates for issuance of the task order, or the notice to proceed, that the agency had applied an unstated evaluation factor by finding its proposal technically unacceptable. In a supplemental protest, Kiewit further stated that the RFP did not require the projected work to be done within 90-days of the notice to proceed, but rather it allowed a firm to choose to show that it could perform all the work within a 150-day period.
GAO found that Kiewit’s assumption that the start date for the project would be 3-months from issuance of the task order was unreasonable, and, since it was unsupported by any explanation for its proposed timeline in the proposal, it was not a sufficient ground on which Kiewit could allege that the agency was unreasonable in its evaluation. Based on its inability to explain its own reasoning for the performance schedule, and lack of explanation for why it extended the timeline out so far from the issuance date, GAO determined that Kiewit had not adequately established a basis upon which to question the reasonableness of the Corps’ evaluation and denied Kiewit’s protest.