• LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-571-223-6845

Bid Protest Weekly
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us

Kuhana-Spectrum Joint Venture, LLC, B-400803; B-400803.2, January 29, 2009

  • By GCPC GovCon Legal Team
  • January 29, 2009
  • ClarificationsDiscussionsProposal Evaluation

Link: GAO Opinion

Agency: Department of the Navy

Disposition: Protest denied.

__________________________________________________________________________________________________________________

GAO Digest:

Protest that agency misevaluated the protester’s proposal, and improperly conducted discussions with one awardee, is denied where the record demonstrates that the agency’s evaluation was reasonable, and that the agency properly limited its communications with one awardee to a permissible clarification.

General Counsel P.C. Highlight:

Kuhana-Spectrum argues that its proposal was misevaluated, and that the Navy conducted discussions with one of the awardees, and allowed that firm to revise its proposal, but never provided a similar opportunity to Kuhana-Spectrum.

With respect to the past performance evaluation, Kuhana-Spectrum argues that a rating of moderate risk is unreasonable in the context of Spectrum’s performance because that rating implies that successful and unsuccessful performance are both equally likely, which the firm disputes. GAO states that determining the relative merits of an offeror’s past performance information is primarily a matter within the contracting agency’s discretion; GAO will examine an agency’s evaluation only to ensure that it was reasonable and consistent with the solicitation’s evaluation criteria and procurement statutes and regulations. The record here reflects a conscientious effort by the Navy to contact references and compile relevant past performance information for Kuhana-Spectrum’s joint venturers. While the record does reflect significant positive past performance by Spectrum, the Navy evaluators also had a reasonable basis for their concerns about adverse past performance information concerning Spectrum. In GAO’s view, the Navy properly considered both the significant positive past performance information and the problems that had occurred on several contracts, including with NMLC itself. In light of the discretion afforded to agencies in the evaluation of past performance, GAO concludes that the record here supports the agency’s rating of moderate risk under the past performance factor.

Under the management plan factor, Kuhana-Spectrum argues that the Navy unfairly downgraded the firm for occasionally referring to Spectrum as a subcontractor, and for identifying only one key person by name. GAO states that the evaluation of proposals is primarily a matter within the contracting agency’s discretion which it will not question unless it finds the evaluation to be unreasonable or inconsistent with the RFP’s evaluation factors. The protester’s disagreement with the agency’s conclusions does not render the evaluation unreasonable. GAO finds that Kuhana-Spectrum was not downgraded simply because its proposal used the term subcontractor erroneously, or because it failed to list any particular number of key personnel. Rather, the record here shows that the proposal’s description of Spectrum as a subcontractor, taken together with the proposal’s identification of only one key person by name, led the Navy to be concerned that the proposal did not set forth an adequate management plan to ensure successful performance of the contract requirements. In GAO’s view, the Navy’s assessment of moderate risk under the management plan factor was reasonable on the basis of the record here.

In a supplemental protest, filed timely after Kuhana-Spectrum received additional documents with the agency report, the firm argues that the Navy conducted discussions with one awardee to allow it to correct omissions in its proposal. Kuhana-Spectrum argues that once the Navy communicated with the awardee (and allowed it to remedy a problem with its proposal), the Navy was required to hold discussions with Kuhana-Spectrum also, to allow it to improve its proposal.

First, GAO finds that the Navy reasonably concluded that the awardee’s proposal constructively acknowledged both of the material amendments to the RFP. As a general rule, an offeror’s failure to acknowledge a material amendment renders the proposal unacceptable, and such proposals may not form the basis for award. However, an amendment may be constructively acknowledged where the proposal includes the material items appearing only in the amendment. Second, GAO agrees with the Navy that it was proper to allow the awardee to correct the missing affirmation of its ORCA entries through a clarification. Offerors may be given the opportunity to clarify certain aspects of proposals without holding discussions. Specifically, an agency may allow an offeror to correct missing representations and certifications through clarifications, and does not hold discussions by doing so. Accordingly, the Navy did not hold discussions with the awardee, and was not required to hold discussions with Kuhana-Spectrum. In conclusion, GAO’s review of the record supports the reasonableness of the evaluation and the Navy’s subsequent selection decisions. The protest is denied.

Share

Related Posts

Matter of Science Applications International Corporation

February 28, 2022

Matter of WRG Fire Training Simulation Systems, Inc.

January 12, 2022

Matter of: Verizon Business Network Services, Inc.

May 27, 2021

Matter of Patronus Systems, Inc.

December 3, 2020

Comments are closed

Search Bid Protest Weekly

Need help with a bid protest?

Call us at: 703-556-0411 Or fill out this form:

Categories

  • 8(a) Sole Source Awards
  • Acknowledging Amendments
  • Adequately Written Proposal
  • Adverse Agency Action
  • Adverse Impact Analysis
  • Agency Tender
  • Alternate or Previously-Approved Product
  • Ambiguity in Solicitation
  • Attorney's Fees
  • Bad Faith in Evaluation
  • Below-Cost Offer
  • Best Value
  • Beyond the Scope
  • Bias
  • Bid and Proposal Costs
  • Bid Bond
  • Bid Compliance
  • Bid Protest Decisions
  • Bid Protest Jurisdiction
  • Bid Protests
  • Bidding Best Practices
  • Blanket Purchase Agreement
  • Blanket Purchase Order
  • Blog Articles
  • Bona Fide Needs Rule
  • Brand Name or Equal
  • Broad Agency Announcement
  • Brooks Act
  • Bundling or Consolidation
  • Buy American Act
  • Cancellation of a Solicitation
  • Capability of Contractor
  • CCR Registration
  • Certificate of Competency (COC)
  • Certification Requirements
  • Changes Clause
  • Clarifications
  • Clear and Convincing Evidence
  • Clearly Meritorious Protest
  • Clerical Error
  • Commercial Item Acquisition
  • Competitive Range
  • Compliance
  • Conflict of Interest
  • Construction Design-Build
  • Construction Services
  • Contract Administration
  • Contract Modifications
  • Contracting Preference
  • Contractor Responsibility
  • Corporate Capability
  • Corrective Action
  • Cost Accounting System
  • Cost Evaluation
  • Cost Realism
  • Cost Reimbursement Contract
  • Cost-Technical Trade-Off
  • Customary Commercial Practice
  • CVE
  • DCAA Audit
  • Debriefing
  • Default Termination
  • Deficient Price Proposal
  • Delivery Order jurisdiction
  • Delivery Schedule
  • Designated Employee Agent
  • Disclosure of Price
  • Disclosure of Source Selection-Sensitive Information
  • Discussions
  • Disqualification
  • Documentation of Evaluation
  • Domestic Production Requirement
  • Education Center Articles
  • Electronic Filing
  • Evaluation Criteria
  • Evaluations
  • Events
  • Executive Order Compliance
  • Experience of Contractor
  • Experience Requirement
  • Fair Market Price
  • FASA
  • FedBizOpps
  • Federal Prison Industries (FPI)
  • Filing Deadlines
  • Final Evaluation
  • Final Proposal Revisions
  • Financial Responsibility
  • Fixed Price Contract
  • Former Government Employees
  • FSS Contract
  • GAO Bid Protest Review
  • GAO Jurisdiction
  • GAO Standard of Review
  • Government Contracts
  • Government Office Closings
  • Government Surplus Material
  • GSA Lease
  • HUBZone
  • ID/IQ
  • In-Sourcing
  • Incentive Fee
  • Inclement Weather Delay
  • Incomplete Proposal
  • Incorporation by Reference
  • Incumbent Capture
  • Incumbent Status
  • Independent Government Estimate (IGE)
  • Individual Environmental Report
  • Industrial Mobilization
  • Innovations
  • Interested Party
  • Invitation for Bid
  • Invited Contractor
  • Javits-Wagner-O'Day Act
  • Joint Venture
  • Key Personnel
  • Labor Hours
  • Labor Rate Pricing
  • Late Proposals
  • Late Submissions
  • Level of Effort
  • Licensing Requirements
  • Limitation on Subcontracting
  • Liquidated Damages
  • Lost Proposal
  • Lowest Price Technically Acceptable
  • Mail-Box Rule
  • Management Planning
  • Market Research
  • MAS Contracts
  • Material Misrepresentation
  • Material Solicitation Amendment
  • Material Solicitation Terms
  • Meaningful Discussions
  • Micro-Purchase Threshold
  • Minimum Requirements
  • Misleading Discussions
  • Mistake
  • Mitigation Strategy
  • Multiple Awards
  • NAICS Code
  • National Security
  • Negotiation
  • News
  • Non-Procurement Instruments
  • Novations
  • Offeror Representations
  • OMB Circular A-76
  • Option Exercise
  • Oral Presentations
  • Organizational Conflict of Interest (OCI)
  • Page Limitations
  • Past Performance
  • Past Performance Information Retrieval System (PPIRS)
  • Performance Based Standards
  • Permits and Responsibilities
  • Personal Conflicts of Interest
  • Post-Award Changes to the Contract
  • Post-Protest Re-Evaluations
  • Practicable Alternative
  • Pre-Award Protest
  • Pre-award vs. Post-award Requirements
  • Pre-Qualification of Offerors
  • Pre-Solicitation Notice
  • Prejudice
  • Price Calculation Error
  • Price Calculation Error
  • Price Evaluation
  • Price of FSS Task Order Quote
  • Price Realism
  • Price Reasonableness
  • Price Reduction
  • Procurement Announcement
  • Procurement Integrity
  • Product Testing
  • Proposal Acceptance Period
  • Proposal Detail
  • Proposal Evaluation
  • Proposal Extension
  • Proposal Standards
  • Proposals
  • Protest Terms of Solicitation
  • Protester Comments
  • Public-Private Competition
  • Randolph-Sheppard Act (RSA)
  • Rate Tenders
  • Re-Certification of Size Status
  • Reconsideration
  • Reevaluation
  • Reevaluation Standards
  • Reimbursement of Protest Costs
  • Rejection of Proposal
  • Relaxation or Waiver of Requirement
  • Relevancy of Past Performance
  • Reliance on the Proposal
  • Remedies
  • Requirements Contract
  • Responsibility
  • Responsiveness
  • Restricted Competition
  • Resumes
  • Revision of Proposal
  • Revision of Proposals
  • Risk
  • Rule of Two
  • SBA Status protest
  • Scope of GAO Review
  • SDVOSB Set-Asides
  • Significant Issue Exception
  • Simplified Acquisition Procedures
  • Site Visit
  • Size Determination
  • Size Protest
  • Small Business Innovation Research (SBIR) Program
  • Small Business Set-Asides
  • Small Business Subcontracting Goals
  • Sole-Source Award
  • Solicitation Amendment
  • Solicitation Requirements
  • Source Approval
  • Source Selection Authority
  • Source Selection Decision
  • Source Selection Plan
  • Sources Sought Notice
  • Staffing Plan
  • State and Local Requirements
  • Status of Forces Agreement (SOFA)
  • Subcontract Protest
  • Subcontractor Experience
  • Suspension and Debarment
  • Taking Exception to RFP Requirements
  • Task Orders
  • Teaming Agreement
  • Technical Acceptability
  • Technical Evaluation
  • Technical Evaluation
  • Termination of Award
  • Terms of the Solicitation
  • Timeliness of Protest
  • Timely Filing
  • Timely Performance
  • Timely Proposal Submission
  • Trade Agreement Act
  • Unbalanced Pricing
  • Unduly Restrictive Terms
  • Unequal Access to Information
  • Unequal Treatment of Offerors
  • Uniform Time Act of 1996
  • Unstated Evaluation Criteria
  • Unusual and Compelling Urgency
  • Use of Appropriated Funds
  • Veterans First
  • VIP Database
  • VOSB Set Asides
  • Wage Determination

Get Help


Talk to an
attorney who
specializes
in bid protests:

+1-571-223-6845
Email

Keep up to date
on bid protest
decisions and
policies:

© 2022 Bid Protest Weekly

  • LinkedIn
  • Google +
  • Twitter
  • Facebook
  • Home
  • Bid Protest Ed Center
  • Blog
  • Topics
  • About Us
  • Contact Us
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us
  • LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-571-223-6845