Link: GAO Opinion
Agency: Department of Labor
Disposition: Protest denied.
- Protest that evaluation improperly included undisclosed criteria concerning milestones for meeting Job Corps Center capacity and compensation sufficient to attract and retain personnel is denied, where both matters were clearly encompassed by solicitation evaluation provisions.
- Evaluators’ decision not to raise protester’s evaluation score based on revised proposal, which resolved weaknesses and added strength, was unobjectionable where evaluators reasonably concluded that revisions only demonstrated compliance with minimum solicitation requirements.
General Counsel P.C. Highlight:
MINACT first asserts that, in evaluating its proposal, the agency applied numerous undisclosed criteria, including some contained in the agency’s procurement panel guide (PPG), which was used by the evaluators, but not released to the offerors. MINACT maintains that it was unreasonable for the agency to downgrade its proposal based on these undisclosed criteria. GAO states that in evaluating proposals, an agency properly may take into account specific, albeit not expressly identified, matters that are logically encompassed by, or related to, the stated evaluation criteria.
GAO finds that all of the allegedly undisclosed criteria were reasonably related to or encompassed by the stated criteria. For example, MINACT asserts that it was improper for the agency to assess a weakness under the admissions technical subfactor for failing to detail how it would attain and maintain [deleted] percent on board strength (OBS), since this was not specifically identified as an evaluation criterion. In GAO’s view, the weakness was reasonably evaluated consistent with the identified admissions subfactor. The RFP specifically provided that the JCC “shall [be operated] at an estimated planned average [OBS],” as specified in the statement of work, and that the contractor “shall be continually prepared to receive a sufficient number of students to maintain the average [OBS] . . . and a surge capacity of 103 percent.” As one of 12 questions relevant to the admissions subfactor, the RFP specifically asked offerors to identify the “systems and procedures” they would use to “ensure achievement of arrival goals,” and the “milestones and objectives” they would use to drive that performance. In its initial proposal, MINACT proposed to meet the standard but, notwithstanding the RFP guidance, did not provide any milestones for reaching and maintaining [deleted] percent OBS. Thus, during discussions, the agency specifically asked how MINACT would “attain and maintain [deleted] % OBS,” MINACT’s FPR still was found not to provide any milestones for accomplishing its goal. Based on this analysis, the agency’s evaluation was clearly encompassed by the stated evaluation criteria–and then further reinforced by the discussion question–which specifically referred to OBS strength and the milestones to drive performance.
MINACT next asserts that the agency unreasonably failed to increase its proposal’s evaluation score based on its FPR, even though, in MINACT’s view, its FPR eliminated most of the assessed weaknesses in its initial proposal and resulted in some added strengths under four technical subfactors–CDP, CPP, outreach, and A&M support. GAO states that an agency is required to document its judgments in sufficient detail to show that they are not arbitrary. However, in reviewing an agency’s evaluation, GAO does not limit its review to contemporaneous evidence, but considers all of the information provided, including the parties’ arguments, explanations, and any hearing testimony. While GAO generally gives little weight to reevaluations and judgments prepared in the heat of the adversarial process, post-protest explanations that provide a detailed rationale for contemporaneous conclusions simply fill in previously unrecorded details, and will generally be considered in GAO’s review of the reasonableness of an evaluation, so long as those explanations are credible and consistent with the contemporaneous record.
The evaluators’ explanations are sufficient to establish a reasonable basis for their evaluations. In this regard, MINACT’s argument is based upon a faulty assumption–that its proposal was downgraded based on the assessed weaknesses and that, when the weaknesses were corrected, its proposal score should have been increased by all remaining points–in essence, that it should have received a perfect score. There is no basis for this assumption. First, nothing in the RFP indicated that more than a satisfactory score would be assigned proposals meeting the RFP requirements. Absent such an RFP provision, GAO finds it is indisputably reasonable for a proposal to be rated with an adjective of fully satisfactory–rather than very good or exceptional–where the correction of weaknesses results in the proposal’s meeting–rather than exceeding–the RFP requirements. This was the approach followed by the evaluators. Since, as explained by the evaluators, MINACT’s improvements merely brought its proposal up to the expected and satisfactory level, as set forth in the RFP, and were found to provide no value beyond that level, the evaluators could reasonably conclude that the elimination of the identified weaknesses did not warrant a rating above satisfactory. Likewise, GAO has no basis to question the evaluators’ conclusion that the addition of a single strength in 1 of 11 areas reviewed did not warrant an increase in MINACT’s score. Certainly, MINACT has not established that the correction of weaknesses and the addition of a single strength warranted a perfect score. The protest is denied.