Link: GAO Opinion
Agency: Department of Justice
Disposition: Protest sustained.
Keywords: Terms of solicitation; Life-cycle price evaluation
General Counsel P.C. Highlight: An agency can’t accept an expired proposal that required agency action prior to the proposal’s expiration and an agency must also consider a proposal’s option year pricing and not only base year pricing.
GAO sustains the protest of Medical Development International, Inc. (MDI) where another offeror was awarded a contract, under a request for proposals (RFP), issued by the Federal Bureau of Prisons (BOP), Department of Justice, for comprehensive medical services for a federal correctional complex in Terra Haute, Indiana.
MDI first argues that the agency’s evaluation of proposals and selection of the awardee’s proposal were inconsistent with the terms of the solicitation and not reasonably based. Specifically, the protester argues that the agency’s evaluation of the awardee’s proposal under the technical factor as offering the enhancement of “a firm commitment to [DELETED]” was in error because the evaluation did not recognize that the awardee had qualified its offer by including in its proposal a condition to trigger the [DELETED] that had not been met. Secondly, MDI argues that the agency failed to properly consider price in its source selection, contending that the agency only considered the base period pricing, and not the option period pricing, in determining which proposal represented the best value to the agency. GAO states that the evaluation of proposals is a matter within the discretion of the contracting agency, and in reviewing protests against allegedly improper evaluations, it is not GAO’s role to reevaluate proposals. Rather, GAO examines the record to determine whether an agency’s judgment is reasonable and consistent with the evaluation factors set forth in the solicitation.
GAO agrees with the agency that whether an offeror actually delivers a product or service during the performance of a contract as set forth in their proposal is a matter of contract administration, but GAO fails to see the applicability of this proposition to this protest. Here, the protest challenges the agency’s evaluation of the merits of the awardee’s proposal, and specifically, whether the agency, during its reevaluation of proposals in early December 2009 properly determined that the awardee’s proposal provided “a firm commitment to [DELETED].” Given the agency’s consideration of this enhancement during its reevaluation of proposals, and the prominent mention of this enhancement in its revised source selection decision of December 17 this matter concerns the propriety of the agency’s evaluation and source selection, and therefore is properly for consideration by GAO.
Additionally, as a general matter, and as noted by the agency, it is not improper for an agency to accept an expired offer without reopening negotiations where acceptance is not prejudicial to the competitive system. However, the awardee’s proposal, as submitted, expressly required with regard to the [DELETED], that the agency provide written notification of its desire for this [DELETED] by October 2009. The agency did not provide this “requisite written confirmation” by October 2009, and therefore, its acceptance in December 2009 of the awardee’s proposal could not also include the awardee’s offer to [DELETED] because that aspect of the proposal had expired by the proposal’s own terms in October 2009. GAO does note that while a proposal’s expiration date may be waived, the agency has not pointed to any authority, and GAO is unaware of one, for the agency’s apparent proposition that an agency may also allow a specific term or condition within a proposal that requires agency action to also be waived. In sum, GAO finds that the agency unreasonably determined during its December 2009 reevaluation of proposals that the awardee’s proposal provided “a firm commitment to [DELETED],” because the agency was aware that it had not provided “the requisite written confirmation to [the awardee]” by October 2009.
The protester also argues that the agency’s consideration of price in the source selection decision, and the determination that an award to the awardee was in the best interest of the government, were inconsistent with the terms of the solicitation. GAO states that although the source selection decision provides considerable detail with regard to the base year pricing of the evaluated proposals, and some quantification of the value of the awardee’s evaluated enhancement of an [DELETED], GAO agrees with the protester that the source selection decision reflects a consideration of the proposals’ base period pricing only. That is, the source selection decision does not provide any discussion of the proposals’ option year pricing, including any recognition that the price advantages of MDI’s proposal appears to increase over each of the proposed option periods. Furthermore, the agency has not provided any documentation or statement from, for example, the source selection authority evidencing the consideration of the proposals’ option year pricing contemporaneous with the source selection. Given this, and based on a review of the record, GAO cannot find the agency’s source selection to be consistent with the terms of the solicitation. The protest is sustained.