Link: GAO Decision
Protestor: Linc Government Services, LLC
Agency: Department of the Army
Disposition: Protest Denied.
- Agency reasonably rejected the protester’s submission on Phase I of a design/build construction procurement conducted in accordance with Federal Acquisition Regulation (FAR) subpart 36.3, where major weaknesses were found in the submission, such that the protester was reasonably determined to be not one of the most highly qualified offerors to be invited to participate in Phase II.
- In a design/build construction procurement that was conducted in accordance with FAR subpart 36.3, agency’s decision to hold discussions with only the higher rated phase I offerors as part of the process of determining the most highly qualified Phase I offerors to be invited to participate in Phase II was unobjectionable.
- In a design/build construction procurement that was conducted in accordance with FAR subpart 36.3, where an agency issues an amendment to the solicitation changing the evaluation criteria applicable to Phase I of the acquisition after the Phase I submissions were received, and the amendment allows for revisions to the Phase I submissions, but does not provide a closing date, an agency is not required to consider revisions to a submission that are provided more than 2 months after the amendment was issued; after the agency completed what was, in essence, a competitive range exclusion; and after the agency advised the offeror in a debriefing of the problems found in its submission.
General Counsel PC Highlight:
Linc Government Services, LLC protested its exclusion from further consideration for one of multiple awards anticipated or under consideration for the design-build of medical facilities in the continental United States and overseas locations. The procurement was to be conducted in two phases, with phase I involving submissions from interested firms to determine the “most highly qualified offerors” to be invited to provide competitive proposals in phase II. Linc was one of 18 offerors excluded after the phase I evaluation, all of for which the contracting officer determined that a “major rewrite” would have been required to make their proposals acceptable.
The GAO first disagreed with Linc’s complaint that any problem with its surety’s commitment could have been corrected during discussions. The GAO pointed out that Linc’s submission failed on its face to establish its ability to meet the bonding requirements, and that the burden to establish this ability could not be shifted to the agency. The GAO also found the agency’s evaluation of Linc under the corporate medical experience factor as marginal to be reasonable, noting that Linc had identified only one highly relevant project in an occupied medical facility. The agency was also reasonable in its reliance on Linc’s submission when rating Linc as marginal under the organizational and management/technical approach factor. The GAO held that it was not improper to only hold discussions with some offerors, noting that FAR Part 15 was not applicable to the first phase of a FAR subpart 36.3 procurement.
Offerors bear the burden of submitting adequately written proposals that comply with all requirements in the RFP. Failure to do so can result in an unfavorable evaluation which the agency is under no obligation to allow an offeror to correct through discussions.