Link: GAO Decision
Protestor: M7 Aerospace
Agency: Department of State
Disposition: Protest Denied.
Protest that agency unreasonably determined that proposal for aviation support services failed to comply with solicitation requirement to maintain 85% stock effectiveness rate is denied where agency reasonably read proposal as planning to replenish stock of spare parts on a monthly basis, rather than on an “as-needed” basis, and concluded that this was inadequate to ensure the required stock levels.
General Counsel PC Highlight:
M7 Aerospace protested the award to DynCorp International LLC of a contract for aviation support services to assist the Colombian National Police (CNP) Aviation Program in its counter narcotics efforts. Award was to be made on a lowest-priced, technically-acceptable basis, considering nine evaluation factors. A rating of unacceptable under any subfactor would render the factor unacceptable, and a factor rating of unacceptable may exclude an offeror from the competitive range; proposals that were rated marginal were also considered technically unacceptable. Although M7 offered a lower price than DynCorp, it received a marginal rating under one factor, as well as a rating of fail for the small business subcontracting plan.
The GAO found the evaluation of M7 under the subcontracting management subfactor, based on M7’s proposal to subcontract the rotary wing aircraft maintenance function, a core performance function, to be inconsistent with the underlying solicitation. The agency had concerns because it would not have privity of contract with the entity providing these services, and that M7 had not provided a contingency plan in the event the subcontractor failed to perform. However, the GAO found that, absent notice to the offerors of a prohibition of subcontracting core performance functions, it was unreasonable to reject a proposal simply on the basis that the proposal contemplated subcontracting part of the work. It pointed out that the evaluation did not indicate any concern about the subcontractor, and the record did not support the agency’s other concerns regarding M7’s subcontract management plan.
The GAO found reasonable the agency’s conclusion that M7’s proposal materially failed to meet the solicitation requirement for an 85% stock effectiveness rate, which would result in a marginal rating under the customer service subfactor and thus the overall technical capabilities, logistics and procurement factor, despite the unreasonableness of the agency’s evaluation of M7’s training approach. Based on the agency’s reasonable marginal rating under the technical capabilities, logistics and procurement factor, which rendered M7’s proposal technically unacceptable, the GAO found that M7 was not prejudiced by the other unreasonable actions of the agency.
Offerors bear the burden of submitting adequately written proposals that clearly explains a proposed approach that is in compliance with the terms of the solicitation. If an offeror describes its approach in a manner that may be open to interpretation, it should not count on the agency interpreting that approach the way the offeror intended. So long as the agency’s interpretation is reasonable, the GAO is unlikely to sustain a challenge to the evaluation of the proposed approach.