Link: GAO Decision
Protestor: Phillips Healthcare Informatics
Agency: Department of Veterans Affairs
Disposition: Protest Sustained.
- Final proposal revision is late where it was received by the agency after the time set for submission.
- Protest that agency’s evaluation of past performance was unreasonable is sustained where the record does not contain any evidence that the agency performed a substantive review of past performance or considered the strengths and weaknesses associated with the past performance of the offerors.
- Protest is sustained where agency improperly waived a material solicitation requirement for awardee, and protester has shown a reasonable possibility that it was prejudiced.
General Counsel PC Highlight:
Phillips Healthcare Informatics protested the award to McKesson Technologies of a contract for picture archiving and communications system (PACS) for the veterans integrated service network 6 (VISN 6). Award was to be made on a best value basis, considering the following factors in decreasing order of importance: technical qualifications/management approach; past performance; experience; and price. In its source selection decision, the CO stated that, with the exception of Offeror 3, there was no clear-cut choice among the four offerors included in the competitive range. The three other offerors had identical ratings on the most important factor, and McKesson scored only slightly lower than the other two offerors on the second most important factor. The CO thus found insufficient reason to make award to the highest technically rated offeror in light of McKesson’s lower price.
The GAO first rejected the intervenor’s assertion that Phillips was not an interested party on the grounds that another offeror had the same adjectival ratings but offered a lower price. The GAO pointed out that a proper evaluation is not limited to consideration of the proposals’ adjectival ratings, and that the agency would be conducting a new evaluation if Phillips’ arguments are meritorious. The GAO then agreed with Phillips that McKesson’s proposal was ineligible for award because its FPR was not submitted by the date and time set for receipt of FPRs. The GAO disagreed with the agency’s arguments that it was allowed to accept a late proposal, noting that the agency did not assert which of the alternatives under FAR § 52.212-1(f)(2)(i) is applicable.
The GAO then sustained the protest on the grounds that the past performance evaluation was flawed. It pointed out that the agency had provided minimal documentation supporting its past performance evaluation, which did not identify the reference/source of the information being evaluation and which contained very little detail. The evaluation sheets for McKesson noted that its installation past performance was single site, which failed to satisfy the RFP’s clearly stated requirement for multi-site installation. The source selection decision said that, except for Offeror 3, all the offerors were found to have satisfactory or exceptional past performance, but did not specify which offerors were satisfactory as opposed to exceptional. Furthermore, in its “best value determination,” the CO only discussed past performance in passing; there did not appear to be any substantive evaluation or comparative assessment of the offerors’ past performance.
The GAO also sustained Phillips’ protest on the grounds that the agency improperly waived several material solicitation requirements with regards to McKesson’s proposal. McKesson had proposed to comply with 99.9% uptime guarantees, contingent upon several conditions that completely changed provisions stated in the solicitation. The GAO rejected the agency’s argument that the 99.9% uptime was a “goal,” pointing out that the RFP described this as something with which offerors must “guarantee” compliance.
Disappointed offerors should always request a debriefing so as to better understand how its proposal was evaluated and to ensure that the proposal was evaluated in accordance with the stated criteria. While the agency is not required to document every single aspect of their evaluations, there must still be adequate documentation to support their decisions. While merely disagreeing with the agency’s award decision is insufficient to sustain a protest, if there is not adequate support for that decision, the disappointed offeror may have grounds for a protest.a