Decided: November 19, 2021
Agency: Department of the Navy
Disposition: Protest Sustained
This protest highlights that, although the GAO is highly deferential to agency evaluations, it does find agencies conduct unreasonable evaluations. Here, GAO found the Navy’s evaluations unreasonable, in large part because the Navy’s evaluations were not sufficiently documented to allow for an understanding of the bases for their findings. GAO looked at contemporaneously documented evidence, as well as post-protest explanations, but determined that the record did not support the reasonableness of the Navy’s evaluation. Often, protestors are only aware of insufficient record keeping after filing a protest. General Counsel, P.C. has the experience and skill to assess whether a bid protest is an appropriate resolution for you.
Summary of Facts
WRG Fire Training Simulation Systems, Inc., (“WRG”) protests the award of a contract to the Maritime Institute of Technology and Graduate Studies (MITAGS), under RFP No. N61340-20-R-0016, issued by the Department of the Navy, Naval Air Systems Command, Naval Air Warfare Center Training Systems Division. The Navy sought a contractor-owned “turnkey facility” at which the contractor will provide instructors and other personnel to administer agency-prescribed live-fire firefighting and damage control training courses to Navy and U.S. Coastguard personnel.
The solicitation established two evaluation factors: technical and price. The technical evaluation consisted solely of a pre-award facility inspection using a technical requirements checklist set forth in the solicitation. A proposal would be assigned a technical rating of acceptable if it met the requirements contained in checklist and a rating of unacceptable if it did not meet one or more of the requirements.
WRG and MITAGS submitted proposals and both proposals were initially found technically unacceptable. During the solicitation’s question and answer period, MITAGS posed a question about the requirement for a permanent structure for restrooms, asking if “a prefabricated locker room and restroom trailers mounted on concrete piers” would meet the requirement for a permanent structure. The Navy responded that it could qualify if it also satisfied the remainder of the requirements.
The Navy later re-inspected the offerors’ facilities to assess whether the technical requirements checklist items previously found technically unacceptable had been remediated to a technically acceptable level. Following re-inspection, the Navy evaluated both proposals as technically acceptable. The Navy selected MITAGS’s lower-priced proposal for award and WRG filed this protest.
Basis of Protest
WRG argues that the agency should have evaluated MITAGS’s facility as technically unacceptable because it failed to meet the requirement for an offeror’s facility to include a “permanent structure with male and female restrooms and changing rooms.”
GAO noted that in reviewing an agency’s evaluation of proposals, it is not its role to reevaluate submissions, but, instead, to examine the supporting record to determine if the agency’s evaluation was reasonable, consistent with the terms of the solicitation, and documented adequately. GAO stated that while it will not substitute its judgment for that of the agency, it will question the agency’s conclusions when they are inconsistent with the solicitation criteria and applicable procurement statutes and regulations, undocumented, or not reasonably based. Additionally, when an agency fails to document or retain evaluation materials, it bears the risk that there may not be adequate supporting rationale in the record for GAO to conclude that the agency had a reasonable basis for its evaluation conclusions.
GAO also indicated that it will not limit its review of an agency’s evaluation to contemporaneously documented evidence, but will consider all the information provided, including post-protest explanations that provide a detailed rationale for contemporaneous conclusions and fill in previously unrecorded details, as long as those explanations are credible and consistent with the contemporaneous record. If an agency’s post-protest defense of its evaluation is not supported by the contemporaneous record, or is inconsistent with the record, GAO will give such explanations little weight.
Here, WRG argues that photographs show that MITAGS’s restroom trailer “is not permanent, nor is it intended to be ” and fails to satisfy the solicitation requirement for a permanent structure. GAO found that the Navy’s response provides no answer to WRG’s assertion that MITAGS’s restroom trailer was not offered as a permanent structure, does not explain how MITAGS’s restroom trailer was situated, and offers no explanation for why the evaluators assessed it as meeting the requirement for a “permanent structure.” GAO found that the only explanation the Navy offered in its initial report is that MITAGS’ facilities met the evaluation criteria. Based on this limited information, GAO determined that it was left with a record that “offers no rebuttal to the protester’s assertion that the trailer was not permanent.”
The Navy also stated, without citing to any documents in the record, that MITAGS “provided restroom facilities exactly as described in the Q&A . . . mounted on concrete piers,” but none of the contemporaneous evaluation documents, the contracting officer’s statement, memorandum of law, or the evaluators’ declarations submitted by the agency support that statement. GAO determined that the Navy’s arguments were unpersuasive “because they are not supported by the contemporaneous record or the evaluators’ post-protest explanations of the contemporaneous record, and because they fail to explain how the awardee’s trailer complied with the solicitation’s requirement that the awardee provide a permanent structure for restrooms.”
Since the agency failed to provide either a contemporaneous or a credible post-protest explanation of how or why MITAGS’s restroom trailer satisfied the solicitation requirement, it failed to rebut the WRG’s assertion that the trailer was not permanent, and that the agency unreasonably assessed the trailer as acceptable. Based on this, GAO held that the record does not support the reasonableness of the Navy’s evaluation of MITAGS’s facility as technically acceptable and sustained the protest on this basis. GAO also recommended that the agency conduct a new evaluation, adequately document the new evaluation, and make a new source selection decision based on the new evaluation.
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