Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Protest challenging agency’s decision not to fund proposal under phase I of Department of Defense Small Business Innovation Research Program is denied where there is no evidence that agency acted in bad faith or violated regulations, and evaluation was consistent with solicitation.
General Counsel P.C. Highlight:
NWS asserts that it could not provide the schedule the evaluator was looking for because development was not predictable; that it did not believe the theoretical programmer’s qualifications needed to be included in the proposal; and that the type of effort contemplated does not allow for commercialization statements. GAO states that agencies have substantial discretion to determine which proposals they will fund under an SBIR procurement. In light of this discretion, GAO’s review of an SBIR procurement is limited to determining whether the agency acted in bad faith or violated any applicable regulations or solicitation provisions. Based on GAO’s review of the record, GAO finds no basis to conclude that the agency acted improperly in deciding not to select NWS’s proposal for funding.
First, there is no evidence or allegation that the agency acted in bad faith or violated applicable regulations. As for the solicitation provisions, it is clear that the agency adhered to the evaluation standards set forth in the solicitation in assigning the identified weaknesses in NWS’s proposal. In this regard, the solicitation provided for the evaluation of incremental progress, the qualifications of key investigators and consultants, and commercialization potential, including investment in technology during phase II and funding commitments for phase III. Thus, while NWS may have had reasons for omitting the information in these areas, the fact is that it was required and that the agency’s downgrading the proposal on this basis was consistent with the terms of the solicitation. Similarly, with respect to report requirements, evaluation of incremental progress was specifically provided for under the first evaluation factor. NWS asserts that it was clear that it would meet this requirement, since it would be required to provide a monthly status report in support of partial payments during performance, which it requested in its cost proposal. However, rather than assume that the agency would infer this information from its cost proposal, NWS should have explained in its technical proposal that it planned to provide status reports and the timing of those reports. It is an offeror’s responsibility to submit an adequately written proposal. The protest is denied.