Agency: Department of the Air Force
Disposition: Protest Denied
Decided: May 1, 2017
General Counsel P.C. Highlight: While the source selection advisory council’s (SSAC) report can assist the source selection authority (SSA), the SSA is not bound by the recommendation of the SSAC, provided the SSA’s decision is reasonable, consistent with evaluation criteria, and adequately documented. Agencies are not required to spoon feed offerors specific ways to improve proposals for meaningful discussions to occur. Evaluation factors include both those stated, and those reasonably related to, or encompassed by the factors stated.
Summary of Facts
The Department of the Air Force issued a solicitation in November of 2014, with a “phased” acquisition process. In November of 2015, post competition, both BAE Systems Information and Electronic Systems Integration, Inc., (BAE) and Northrop Grumman Systems Corporation (Northrop Grumman) were awarded system design contracts. After award, both BAE and Northrop Grumman participated in activities/milestones, intended to provide the basis for a down-select competition. Per the RFP, this decision was to be made on a best value basis, evaluating both engineering and cost/price. The engineering factor included two sub-factors of equal weight, system performance and aircraft integration. In August of 2016, BAE and Northrop Grumman completed both CTDs (critical technology demonstrations) and CDRs (critical design reviews) and in September, submitted or updated cost/price data. The agency then evaluated the proposed solutions and sent both contractors evaluation notices (ENs).
In December of 2016, the source selection advisory council (SSAC) prepared a report for the source selection authority (SSA). Of significance to this protest, the SSAC noted the adjectival ratings left both systems equally rated by the source selection evaluation board (SSEB). Consequently, “a compelling case could potentially be made to award to either offeror.” The SSAC, upon review, concluded the solution proposed by Northrop Grumman was superior to BAE’s under the sub-factor “system performance.” The SSAC found BAE’s solution under the equally weighted sub-factor “aircraft integration” “minimally, but discernably” superior to Northrop Grumman’s solution. Both contractors received “moderate risk” ratings for the system performance sub-factor. Overall, however, the SSAC determined the benefits of the Northrop Grumman proposal outweighed the benefits offered by BAE’s solution. In their report, the SSAC stated, in relevant part, “We do recognize that a different body of stakeholders with similar experience and knowledge could reach an entirely different recommendation based on the same data.” The SSAC’s report went on to debate the value of various source selection criteria.
The SSA reviewed all source selection documentation, the proposal analysis report, the comparative analysis report, as well as the report on price/cost. Additionally, SSA engaged in discussions with experts involved in the source selection process. In the end, the SSA determined BAE’s solution reflected the best value for the government. In making the decision, the SSA documented his decision, discussing various aspects of the recommendations of the SSAC, acknowledging strengths associated with Northrop Grumman’s solution, identifying risks with BAE’s solution, and finally, concluding BAE’s strength in system performance, combined with risks in the Northrop Grumman aircraft integration approach led to a conclusion different than that of the SSAC. Importantly, the SSA noted the strengths which carried weight, including, but not limited to the price, approximately 7 percent lower than the Northrop Grumman proposal.
Basis for Protest
Northrop Grumman protests three areas of the agency’s evaluation and source selection process. First, they argue the SSA’s rejection of the SSAC award recommendation was unreasonable; second, that the agency failed to conduct discussions that were meaningful; and finally, that the agency improperly applied unstated evaluation factors.
SSA’s Source Selection
Northrop Grumman offered arguments essentially attacking the SSA’s rationale for selecting BAE over the proposal offered by, and recommended by, the SSAC. The GAO first notes the standard of review, “in reviewing an agency’s evaluation of proposals and source selection decision, it is not our role to reevaluate submissions; rather, we examine the supporting record to determine whether the decision was reasonable, consistent with the stated evaluation criteria, and adequately documented.” (citations omitted). The GAO examined the supporting record, and found there was nothing “unreasonable in the SSA’s consideration of all the risks and benefits associated with both solutions.” The GAO further noted, “while Northrop Grumman clearly wishes that the competing factors considered, and judgments made, by the SSA had led to a different selection decision, it has wholly failed to establish that the SSA’s judgments and conclusions were unreasonable. . .” Thus, the protest was denied on this ground.
Northrop Grumman also complained the discussions held with the Agency were “less than meaningful” in that Northrop Grumman was not told the Agency’s concerns about Northrop Grumman’s schedule risk was more important to the Agency than BAE’s performance risk. The GAO notes Agencies are not required to “spoon feed” an offeror information about how to best revise every item of a proposal. Further, the record clearly establishes the Agency expressed concerns about Northrop Grumman’s schedule risk. Consequently, given the record, the GAO finds no merit in the assertion meaningful discussions were not held.
Unstated Evaluation Factors
Finally, Northrop Grumman asserts the Agency improperly considered an unstated evaluation factor. In determining whether an evaluation factor falls into the category of “unstated,” the GAO notes Agencies must identify all “major evaluation factors, they are not required to identify all areas of each factor that might be taken into account in an evaluation, provided that the unidentified areas are reasonably related to, or encompassed by, the stated factors.” (citations omitted). Because the evaluation was both related to and encompassed by stated evaluation criteria, the protest is denied on this ground as well.