Link: GAO Opinion
Agency: United States Marine Corps
Disposition: Protest denied.
1. Protester’s proposal was reasonably excluded from the competitive range where several sections of the proposal stated that the offered item exceeded the solicitation’s maximum allowable weight.
2. Where two offerors received a technical rating of unacceptable, and only one is included in the competitive range, there is no unequal treatment if the record supports the agency’s judgment that the deficiencies of the excluded proposal were of greater magnitude than the deficiencies of the included proposal.
General Counsel P.C. Highlight:
GAO denies the protest of Outdoor Venture Corporation regarding the exclusion of its proposal from the competitive range under a request for proposals (RFP), issued by the United States Marine Corps for general purpose medium shelters (GPMS).
Outdoor argues that it was unreasonable for the agency to exclude its proposal from the competitive range for failing to comply with the maximum weight requirement because, it contends, its shelters can meet the 820 pound weight requirement by using different fabrics. Moreover, the protester points out that its proposal contained fabric swatches of such lighter weight fabrics. GAO states that the decision to establish a competitive range and the determination whether a proposal should be included therein is principally a matter within the sound judgment of the procuring agency. The significance of the weaknesses and/or deficiencies in an offeror’s proposal, within the context of a given competition, is a matter for which the procuring agency is, itself, the most qualified entity to render judgment. GAO will review that judgment only to ensure it was reasonable and in accord with the solicitation provisions; a protester’s mere disagreement with an agency’s judgment does not establish that the judgment was unreasonable.
GAO finds no merit in Outdoor’s argument that the agency improperly excluded its proposal from the competitive range. At least three different places in Outdoor’s proposal listed the shelter’s weight as being in excess of the maximum allowable weight. Moreover, Outdoor’s proposal, on its face, indicated that its shelter exceeded the weight limit when it stated, The maximum weight is 3% above the system weight listed in the subject CID. Yet the system meets all other requirements. Moreover, the test reports submitted as part of the proposal indicated that the system was too heavy. Therefore, GAO finds the TEB’s exclusion of Outdoor’s proposal from the competitive range to be reasonable and supported by the record.
Outdoor also alleges that it was treated unequally when the agency considered which proposals to include in the competitive range. GAO states that while agencies may properly exclude from the competitive range proposals that are deemed to have no realistic prospect for award, judgments regarding which proposals are included in a competitive range must be made in a relatively equal manner. Accordingly, an agency cannot reasonably exclude a proposal from the competitive range where the strengths and weaknesses found in that proposal are similar to those found in proposals in the competitive range. Further, adjectival ratings are no more than guidelines for intelligent decision making to assist source selection officials in evaluating proposals. The question ultimately is whether the record supports the agency’s conclusions regarding the relative merits of proposals.
Here, while Outdoor correctly asserts that both proposals contained deficiencies resulting in a subfactor rating of unacceptable, Outdoor has not demonstrated that the deficiencies in the awardee’s proposal were comparable in overall significance to the deficiencies in its own proposal. In fact, the contemporaneous record shows that the opposite was true. While the TEB assigned a technical rating of unacceptable to both offerors, the TEB’s narrative makes clear that it believed the deficiencies in Outdoor’s proposal were of greater significance than the deficiencies in RWH’s proposal. In this regard, the TEB stated that, while the awardee and Outdoor both received ratings of unacceptable due to failures in meeting requirements spelled out in the solicitation, the weight of Outdoor’s system could not be changed without a major revision of its proposal. Accordingly, GAO thinks that the competitive range decisions here were reasonable and supported by the record. The protest is denied.