Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest Sustained.
In a negotiated procurement that provided for the evaluation of small business subcontracting plans on a pass/fail basis, the rejection of the protester’s proposal as technically unacceptable on the basis of the acceptability of its small business subcontracting plan was unreasonable.
General Counsel P.C. Highlight:
Management Consulting Inc. d/b/a MANCON protested the rejection of its proposal under an RFP for the operation of a walk-in retail store at the Naval Air Station Norfolk, Virginia. The RFP provided that the socio-economic evaluation factor would be evaluated on a pass/fail basis, and offerors were required to submit a small business contracting plan pursuant to FAR clause 52.219-9 Alternate II, which would include certain assurances regarding its subcontractors. The proposal of MANCON, the incumbent contractor, was found unacceptable under the socio-economic factor because it failed to provide the required assurances; a revised socio-economic volume submitted by MANCON was also found unacceptable due to its failure to use the specific language provided in the FAR.
The GAO agreed with MANCON’s argument that the small business subcontracting plan evaluation factor concerned the firm’s responsibility, and not the evaluation of its technical acceptability. It found that the Navy’s focus on the exact wording from the FAR put undue emphasis on form over substance, noting that the record did not indicate that MANCON did not intend to comply with those sections. The GAO also found that the contracting official’s refusal to have further communications with MANCON was based on the unreasonable and unsupported conclusion that such an exchange would constitute discussions.
This decision demonstrates the need for offerors to pay particular attention to the language of the RFP and to request clarification if they are unsure of the precise information the agency would like submitted. Although MANCON was successful in its protest, as its offer did in fact support a conclusion that it would be responsible with regards to its small business subcontracting plan, it had to endure the bid protest process due to the Navy’s focus on submissions containing the exact language of the FAR.