Link: GAO Opinion
Agency: Department of Health and Human Services
Disposition: Protest denied.
Keywords: Competitive Range Determination
General Counsel P.C. Highlight:
OLBN Architectural Service, Inc. protests the evaluation and subsequent non-selection of its qualification statement for negotiation of an architect/engineering (A/E) services contract, pursuant to a solicitation, issued by the Department of Health and Human Services, National Institutes of Health (NIH), for general A/E services.
In acquiring A/E services, a contracting agency must publicly announce its requirements, evaluate the A/E performance data and qualifications statements on file as well as those submitted in response to the announcement, and select at least three firms for discussions without considering price. Negotiations concerning price are then conducted with the highest-ranked firms.
The qualifications statement of OLBN was ranked ninth-best, and determined to be outside of the competitive range. OLBN filed a protest, challenging the exclusion of its qualifications statement from the competitive range. In response to the protest, the agency stated that it would take corrective action by reevaluating OLBN’squalifications statement as well as those of each firm whose statement received a higher score than OLBN. GAO dismissed the protest. The technical evaluation panel (TEP) reconvened and determined that OLBN would again be excluded from competition.
OLBN protests its exclusion from the list of firms being further considered for awards, arguing that the agency failed to accord its submission appropriate credit and treated the offerors unequally. GAO states that in reviewing a protest of an agency’s selection of a contractor for A/E services, it will not substitute its judgment for that of the agency evaluators. Rather, the evaluation of offerors’ qualifications statement is within the discretion of the agency, and GAO’s review examines whether the agency’s selection was reasonable and in accordance with the published criteria.
Under the professional qualifications and project team organization factor, OLBN received 17 out of a possible 25 points. In evaluating this factor the agency found a weakness because “[t]he resumes for three of the firm’s prime key persons show no previous work history with OLBN.” GAO states that in evaluating proposals or qualifications statements, an agency properly may take into account specific matters that are logically encompassed by, or related to, the stated evaluation criteria, even when they are not expressly identified as evaluation criteria. Here, the evaluation factor involved an examination of the qualifications of the project team members (prime and sub-consultants), key personnel, and project team organization. GAO agrees with the agency that consideration of the working relationship between proposed key personnel experience and OLBN, the prime contractor, was logically related to the consideration of “professional qualifications” and “project team organization” and so did not constitute use of an unstated evaluation criterion.
Under the second evaluation factor, specialized experience and technical competence, OLBN received 17 out of a possible 25 points. In evaluating this factor the agency noted that OLBN itself did not participate with any of the example LEED projects and relies solely on the knowledge, experience, and expertise of its subcontractors to manage and coordinate this major portion of the work. GAO states that the agency reasonably viewed LEED accreditation as within the scope of the stated evaluation criterion of “specialized experience and technical competence” with regard to matters such as “energy conservation, pollution prevention, waste reduction, and the use of recovered materials.” To the extent that the agency had a concern with OLBN’s lack of experience as a prime contractor with LEED projects, as distinct from the experience of its subcontractor personnel with such projects, GAO finds this judgment was a matter within the agency’s discretion and was consistent with the evaluation criteria.
Under the third evaluation factor, “capacity to accomplish the work in the required time including capacity to accomplish multiple simultaneous task orders,” OLBN received 7.5 out of a possible 15 points. The agency noted that, although OLBN listed four projects, the protester “was a subcontractor to the lead/prime construction contractor for three of these projects and only three members of the OLBN staff participated on all four of these projects.” GAO finds that the agency had a reasonable basis for distinguishing between the records of the competitive range offerors and the protester. Based on the evaluation of these three factors, GAO denies the protest.