Link: GAO Opinion
Agency: Department of the Interior
Disposition: Protest sustained.
Keywords: Simplified Acquisition Procedures
General Counsel P.C. Highlight: Even for procurements under simplified acquisition procedures, it is a fundamental principle of government accountability that an agency be able to produce a sufficient record to allow for a meaningful review where its procurement actions are challenged. Where an agency fails to adequately document its actions, it bears the risk that there may not be adequate supporting rationale in the record for GAO to conclude that the agency had a reasonable basis for the source selection decision.
Resource Dimensions, LLC (Resource) protests the issuance of a purchase order, under a request for quotations (RFQ), issued by the Department of Interior (DOI), for the review and analysis of current land acquisition prioritization processes, and the development of recommendations for future collaborative landscape conservation procedures.
The RFQ was issued as a total small business set-aside using acquisition procedures pursuant to the authority of Federal Acquisition Regulation (FAR) subpart 13.5, “Test Program for Certain Commercial Items.” The RFQ contemplated the issuance of a purchase order to the vendor submitting the quotation determined to represent the best value to the government. The solicitation provided for a two-step evaluation process. First, the vendors were rated on a go/no-go basis regarding their past experience. The vendors whose quotations were rated “go” were then requested to provide a technical quotation by means of an oral presentation with supporting documentation. The solicitation also required the successful contractor to complete three tasks for the agency. The first two tasks were to be performed during the base period: (1) analyze existing process for land acquisition prioritization and identify areas for improvement that will result in increased collaboration and enhanced outcomes, and (2) develop a multi-year strategy for landscape conservation and a derivative process to advance landscape conservation, involve the relevant participants, and allow for future adaptation. The third task–to develop an implementation plan for future years–was contained in an option that has not yet been exercised.
Resource received a “go” rating and scheduled its oral presentation. The oral presentation was videotaped. After the presentation, the technical evaluation panel (TEP) reviewed their notes on the presentation and returned to the presentation room for a question-and-answer (Q&A) session, which was not videotaped or otherwise recorded. Although the Q&A session was not recorded, it was documented with hand-written notes. Resource received a document from the contract specialist stating that Resource’s quotation was unacceptable because it reflected a lack of understanding of the statement of work and did not adequately address specific methods and techniques, including cross-bureau collaboration. The document specifically referenced Resource’s failure, during the Q&A session of the oral presentation, to articulate its methods or strategies in a variety of areas. The TEP did not review this document prior to award, but a TEP member testified at the hearing that this document accurately captured the TEP’s evaluation.
Resource responded that they were “concerned that many of the notes provided in the attached document as our responses do not accurately reflect, or in many instances even closely match the wording of our verbal responses.” Resource was allowed to make changes, but the responses must be the same as the responses given on the day of the presentation. Resource provided its proposed changes in the document to the contract specialist. Resource’s changes were accepted and finalized. The agency issued a purchase order to the awardee and Resource filed its protest challenging its evaluation and the agency’s selection of the awardee as the best value vendor.
Resource asserts that the agency unreasonably evaluated its technical quotation because the agency’s assigned weaknesses in support of its determination that Resource’s quotation was technically unacceptable were, in fact, adequately addressed in Resource’s presentation. GAO states that simplified acquisition procedures are designed to, among other things, reduce administrative costs, promote efficiency and economy in contracting, and avoid unnecessary burdens for agencies and contractors. When using simplified acquisition procedures, an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate quotations in accordance with the terms of the solicitation. In reviewing protests of an allegedly improper simplified acquisition evaluation, GAO will examine the record to determine whether the agency met this standard and executed its discretion reasonably. Moreover, even for procurements under simplified acquisition procedures, it is a fundamental principle of government accountability that an agency be able to produce a sufficient record to allow for a meaningful review where its procurement actions are challenged. Where an agency fails to adequately document its actions, it bears the risk that there may not be adequate supporting rationale in the record for GAO to conclude that the agency had a reasonable basis for the source selection decision. Nevertheless, in reviewing an agency’s procurement actions, GAO does not limit its review to contemporaneous evidence, but considers, as appropriate, hearing testimony and the parties’ arguments.
Here, while Resource’s 1-hour oral presentation was videotaped, the Q&A session was not. Instead, this session was documented by hand-written notes taken by acquisition personnel. The contract specialist used these notes, and her own, to prepare a document memorializing the session. When Resource asserted that the contract specialist’s account mischaracterized its answers, the contract specialist permitted Resource to submit its version of the answers, which with a few edits by the agency, was accepted as an accurate memorialization of the session. The accepted revisions provided much more detailed answers to the questions offered during the Q&A session of the oral presentation.
At the GAO hearing, a witness from the TEP was asked by the hearing officer to provide her recollection of Resource’s Q&A session. The hearing officer read several of the questions from the document memorializing Resource’s answers during the Q&A session to the TEP member, who testified that she had not seen either the initial or finalized version of the document. Although the TEP member testified that she was able to recall some of the questions, she had limited recall of Resource’s answers; to the extent she recalled the answers, her recollection seemed more consistent with the initial version of the Q&A document, than with the final document that the agency agreed more accurately reflected Resource’s answers.
Despite receiving hearing testimony and the parties’ post-hearing arguments, GAO cannot find that the agency’s documentation in regard to Resource’s Q&A session is sufficient to allow it to review the reasonableness of the agency’s judgments. Because the final, mutually agreed-upon version of the Q&A document addresses some of the weaknesses included in the TEP’s consensus report that supported Resource’s unacceptable rating, this document is at odds with the consensus evaluation report. In addition, the final Q&A document, which the agency accepted as an accurate memorialization of the session, is inconsistent with the testimony of the TEP witness; at a minimum, the final document provides more robust answers than the TEP member recalled during her testimony. The protest is sustained. GAO states that disturbing the purchase order is not appropriate, but does recommend that the agency not exercise the option for the third task and the agency should reimburse Resource it quotation preparation costs, as well as the costs of filing and pursuing its protests.