Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
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.