Link: GAO Opinion
Agency: Department of the Army, Corps of Engineers
Disposition: Protest denied.
Keywords: Technical Evaluation; Discussions
General Counsel P.C. Highlight: Directly challenging the merits of an agency’s technical evaluation is one of the most difficult protest grounds to win. When GAO reviews a protest related to an evaluation of proposals, it does not independently reevaluate the proposals, but rather determines whether the evaluation was reasonable.
The Department of the Army’s Corps of Engineers issued a request for proposals (RFP) for the award of an indefinite-delivery/indefinite-quantity contract to a minimum of five small business contractors. Award was to be made on a “best value” basis and was to be determined based on price and four non-price related factors: technical capability; technical approach to sample task orders; organization/management; and past performance. The solicitation also provided that the Army would not conduct discussions during the procurement and that award would not be made to an offeror whose proposal contained a deficiency.
The Corps received fifteen proposals, including one from NAE-TECH Remediation Services. As part of its evaluation of NAE-TECH’s proposal, the agency identified one deficiency in NAE-TECH’s response to the sample task order for work to be performed in the U.S. and five deficiencies under the organization/management evaluation factor. Based on these ratings, the agency excluded NAE-TECH’s proposal from the competitive range, a decision that NAE-TECH decided to protest.
In its protest, NAE-TECH principally contended that it did some of the tasks that the agency had listed as deficient. This included the argument that its failure to discuss certain matters was actually evidence of its “comprehensive understanding of remediation efforts.” Additionally, it was claimed that the agency’s assignment of a deficiency was unreasonable in light of the fact that the agency viewed as a strength NAE-TECH’s discussion of other, more complex procedures associated with the sample task order.
When GAO reviews a protest related to an evaluation of proposals, it does not independently reevaluate the proposals, but rather determines whether the evaluation was reasonable. In this instance, GAO determined that it was reasonable for the Corps to assign a deficiency to NAE-TECH’s decision to list the critical tasks in its proposal, instead of providing an explanation as to how the tasks would be performed. GAO was also unpersuaded by NAE-TECH’s argument that it intended to provide further detail during discussions, due to the fact that the solicitation stated its intent to make the award without conducting discussions. Therefore, GAO determined that the Corps’s decision to exclude NAE-TECH’s proposal from further consideration was reasonable and denied NAE-TECH’s protest.