Agency: Department of Commerce, National Oceanic and Atmospheric Administration
Disposition: Protest Sustained
Decided: January 2, 2020
Keywords: Material Solicitation Terms
General Counsel P.C. Highlight: A requirement for letters of commitment from key personnel generally constitutes a material solicitation requirement and failure of an awardee to comply with a material solicitation requirement may result in a sustained protest by the protester.
Summary of Facts
IT Objects, LLC (ITO) protests the award of a contract to Ahtna RDI, JV, LLC (ARJV) under RFP No. 1305M319RNFFS0008, issued by the Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), for information technology services for the Alaska Region of the National Marine Fisheries Service. The agency issued the solicitation on May 23, 2019, as a small business set-aside. The solicitation provided for award on a best-value tradeoff basis, with non-price evaluation factors (technical capability, staffing and management plan, and past performance) significantly more important than price.
Under the RFP, proposals were expected to conform to solicitation provisions and technical proposals were to address the requirements set forth in the non-price factors. Specifically, under the staffing and management plan factor, offerors were to propose key personnel with resumes demonstrating related experience and letters of commitment. The RFP provided that consent from the Contracting Officer was required before making key personnel substitutions. NOAA received five proposals, including offers from ITO and ARJV, and determined that ARJV’s proposal was the best value. NOAA made award to ARJV and ITO protested the award.
Basis of Protest
ITO alleged that ARJV’s proposal failed to comply with a material solicitation requirement and should have been deemed unacceptable because it did not include a letter of commitment for the individual proposed for one of the project’s positions. NOAA argued that ARJV’s proposal included a teaming agreement with the company owned by the individual proposed for the relevant position and that this teaming agreement was a reasonable substitute for a letter of commitment.
The GAO concluded that since the proposal did not include a letter of commitment from one of the proposed individuals, ARJV’s proposal failed to comply with a material solicitation requirement, and the award was improper. The GAO explained that it is a “fundamental principle that an agency must evaluate proposals consistent with the terms of the solicitation” and the GAO will question an agency’s evaluation “where it is unreasonable, inconsistent with the solicitation’s stated evaluation criteria, or undocumented.” A proposal that fails to conform to the material requirements and conditions of the solicitation should be considered unacceptable. A requirement for letters of commitment from key personnel generally constitutes a material solicitation requirement. Here, offerors were required to provide resumes and letters of commitment for proposed key personnel and this requirement was a material solicitation requirement. ARJV did not provide a letter of commitment for personnel for one of the positions.
The GAO found “no support” for the argument that the teaming agreement was a reasonable substitute for a letter of commitment. The GAO considered the fact that the record contained no evidence that at the time of its evaluation and award decision, NOAA considered the teaming agreement as a substitute for a letter of commitment. Rather, it appears at the time of award decision, the agency did not notice that ARJV’s proposal failed to include a letter of commitment, since evaluators noted that the proposal included “commitment letters for all key personnel.” The GAO also considered that there was nothing in the teaming agreement that identifies any particular employee for a key personnel position and only provided that the company would serve as a subcontractor.
The GAO determined that “because ARJV’s proposal failed to comply with the material solicitation requirements for a letter of commitment for each key position; because the record provides no support for the contention that, at the time of its evaluation and award decision, the agency concluded that the teaming agreement . . . would serve as a reasonable substitute for the necessary letter; and because there is no evidence of any commitment for a key
position in the teaming agreement” NOAA’s evaluation of the awardee’s technical proposal was unreasonable. The GAO also found that ITO was prejudiced by this evaluation and recommended that NOAA conduct and document a new evaluation of the awardee’s proposal and prepare a new source selection decision, or take other steps permitted under the regulations.
The GAO sustained the protest on this basis.