Agency: Department of the Air Force
Disposition: Protest Sustained
Decided: September 13, 2017
General Counsel P.C. Highlight:
Compliance with all terms of the solicitation is absolutely critical to a successful proposal. Failure to address the terms of the solicitation requirements may result in a technically unacceptable rating in proposal evaluation.
Summary of Facts
The Department of the Air Force issued a request for proposals (RFP) for integrated solid waste management services at McConnell Air Force Base on February 27, 2017. This RFP was designated a set-aside for 8(a) small business concerns. The solicitation sought integrated recycling as well as municipal solid waste disposal. The award contemplated a fixed-price with economic price adjustment requirements for both a base year and four 12-month options. The RFP provided the award would be made on a best value basis considering technical, past performance, and price factors. Combined, technical and past performance were designated significantly more important than price. The agency indicated they may choose to engage in discussions if determined to be in the agency’s best interests.
Technical proposals would be rated either acceptable or unacceptable. Acceptable proposals, according to the RFP, “clearly meet the minimum requirements of the solicitations.” Those that did not clearly meet the minimum requirements were to be designated unacceptable. To meet the minimum requirements, the proposals were to be evaluated to determine whether the offeror’s’ Mission Essential Contractor Service Plans met the criteria found in Defense Federal Acquisition Regulation Supplement (DFARS) 252.237-7024.
Once proposals were determined acceptable under the technical factor, the agency ranked the proposals according to price, considering balance, completeness, and reasonableness. Past performance evaluation was assigned a confidence rating.
In determining the awardee, if the lowest priced technically acceptable evaluated offer was awarded “substantial confidence” the evaluation stopped. However, if, as happened in this case, the lowest priced, technically acceptable offeror did not receive a substantial confidence performance rating, the next lowest priced technically acceptable offeror would be evaluated, and the process would continue until an offeror has a substantial confidence rating. Then the agency was to make an integrated assessment best value determination.
PBP Management was found to be the lowest price of the five offerors, all of whom were determined technically acceptable. CR/ZWS had the second lowest price. PBP Management’s past performance rating was satisfactory confidence, where CR/ZWS received a substantial confidence rating. The agency then proceeded to perform an integrated assessment best value award decision between the two.
The past performance evaluation team (PPET) determined a range wherein the price difference would be a reasonable tradeoff for the higher rating. CR/ZWS’s price was 14 % higher than PBP Management’s proposal, and the determination was made PBP Management’s proposal represented the best overall value to the government. Consequently, PBP Management was given the award.
Basis for Protest
Protestor raised three separate protest grounds. They were successful on the first ground, which was dispositive.
The first ground upon which protestor objects related to PBP Management’s technical proposal. Protester asserted PBP Management’s technical proposal did not meet material requirements of the solicitation. Therefore, protester asserts, PBP Management’s proposal should have been found technically unacceptable. Specifically, CR/ZWS argued PBP Management’s Mission Essential Contractor Services Plan failed to address criteria detailed in DFARS provision 252.237-7024.
The provision requires, in relevant part, offerors must address the following five factors:
(i) Challenges associated with maintaining essential contractor services during an extended event, such as a pandemic that occurs in repeated waves;
(ii)The time lapse associated with the initiation of the acquisition of essential personnel and resources and their actual availability on site;
(iii)The components, processes, and requirements for the identification, training and preparedness of personnel who are capable of relocating to alternate facilities or performing work from home;
(iv)Any established alert and notification procedures for mobilizing identified ‘essential contractor service’ personnel; and
(v)The approach for communicating expectations to contractor employees regarding their roles and responsibilities during a crisis.
DFARS provision 252.237-7024(b)(2).
CR/ZWS noted PBP Management’s plan included less than two pages and only three substantive sections. CR/ZWS argued the plan failed to address challenges, time lapses, or training issues associated with crisis periods and mobilizing personnel.
Protest sustained on this ground. The GAO noted in reviewing protests wherein the objection is to the agency’s proposal evaluation, the GAO examines the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria, laws, and regulations. They do not reevaluate proposals. The GAO agreed with two of the three objections CR/ZWS raised. PBP Management’s plan did not address two of the five requirements of DFARS 252.237-7024 (b)(2) in any meaningful way. As to the third objection raised, the GAO noted “although the awardee’s plan may not be as robust as that of CR/ZWS, we agree with the agency’s conclusion that the awardee’s plan addresses, at a minimum, two crises – related challenges and, therefore, satisfies the requirements set forth. . . “
Given the failure to address two of the five requirements, the GAO found the awardee’s technical proposal failed to meet the minimum requirements of the solicitation. Therefore, the proposal should have been rated unacceptable. Consequently, the evaluation was unreasonable and CR/ZWS was prejudiced. The GAO recommended the agency either open discussions, obtain revised proposals, or reject PBP Management’s proposal as unacceptable.