Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
- In solicitation for monitoring developing legislation, where performance objectives clearly encompassed awardee’s proposed use of case law data holdings, agency reasonably assigned evaluated strength for that aspect of awardee’s proposal, even though solicitation did not specify that type of research.
- Agency reasonably assessed evaluated weakness in protester’s proposal where experience under protester’s incumbent contract reflected users’ need to access [deleted] protester’s proposed websites–rather than a single website–in order to obtain full benefit of features such as search capabilities.
- Where protester was provided opportunity to explain past performance issue during performance of ongoing task order, agency was not required to provide protester with another opportunity to address the matter in discussions.
- Protest that agency improperly assigned single, overall adjectival rating, which allegedly gave undue weight to only factor where awardee’s proposal had more strengths than protester’s, is denied, since record shows that award decision was based not on adjectival ratings, but on relative strengths and weaknesses of protester’s and awardee’s proposals.
General Counsel P.C. Highlight:
SAI first asserts that the agency improperly assigned an evaluated strength to LexisNexis’s proposal under the technical approach factor based on the firm’s ability to access case law research in support of the contract requirements. SAI maintains that, since the RFP was limited to legislative and regulatory monitoring of state environmental issues, providing case law research is outside the scope of the RFP, and it thus was improper for the agency to assign evaluation credit on this basis.
This argument is without merit. In making distinctions between proposals, the agency may consider specific matters, albeit not expressly identified, that logically relate to the stated evaluation criteria. As the protester concedes, the RFP was “drafted in a performance based format.” The RFP thus did not specify all possible methods of performance; instead it set forth objectives, leaving it to offerors to propose the methods each believed would achieve success as defined in the RFP. In this regard, the PWS states that DoD has a need to monitor developing state-level legislation and regulations and to identify laws and rules that could impact DoD operations. The RFP also incorporated performance objectives and standards, including providing client organizations with timely reports on contemplated or proposed state and limited local environmental legislation and regulations; obtaining follow-up information and issue tracking to assist clients with legislative and regulatory analysis programs; providing detailed reports on specific legislation or regulatory issues; and providing a means for the government to obtain support related to legislative and regulatory issues when needed. The stated performance objectives clearly encompassed LexisNexis’s proposal to use its significant data holdings in performing the legislative monitoring and research tasks in the RFP. Because [deleted] decisions often can and do impact the interpretation of federal and state environmental statutes and regulations, GAO thinks that researching these databases, while not required by the PWS, is plainly consistent with the stated objectives and beneficial to the government. An agency properly may rate one proposal higher than another for exceeding the RFP requirements where, as here, it seeks detailed technical proposals and includes weighted evaluation criteria to enable the agency to make comparative judgments about the relative merits of competing proposals. GAO concludes that the agency reasonably assigned a strength to LexisNexis’s proposal for this capability under the technical approach factor.
SAI next challenges the assessment of a weakness against its proposal based on a finding that DoD users would have to use [deleted] websites for complete access to SAI’s environmental information. According to SAI, the agency ignored the clear explanation in its proposal that SAI’s [deleted] database can be accessed through [deleted].
The evaluation in this area was unobjectionable. The PWS required the contractor to have a website with search and retrieval functionality for the state legislative and regulatory information to facilitate client access to the information, and required it to meet standards such as user registration and handling of forgotten passwords by sending an e-mail to the user. Under the heading of schedule metrics, the PWS called for the website to have the ability to search and retrieve contractor provided information and stated that additional functionality, including user recognition on login and ability to save queries or default conditions relevant to the user, would be “a plus.” Under the information access and retrieval subfactor of the technical approach/capability factor, the RFP provided that the agency would evaluate the comprehensiveness of the proposed strategy for meeting the government’s information access related needs in accordance with the PWS. In evaluating SAI’s proposal, the evaluators found a weakness under this subfactor, noting that the [deleted] website (SAI’s apparent principal user interface) had very limited information search and retrieval capabilities. The SSB considered this to be a significant weakness because of the extra time that would be entailed in users constantly switching [deleted] sites, or because users would simply avail themselves of [deleted] website, tolerating its limited capabilities. SAI does not dispute that [deleted] lacks such features as [deleted]; rather, it asserts that the PWS did not make these features mandatory minimums and that its proposal met the PWS goals. However, whether these features were identified as “mandatory minimums” is not the issue. The SSB did not find SAI’s proposal unacceptable for lack of mandatory features; it simply assigned a weakness based on the lack of access to all features on [deleted] sites. Since SAI proposed the availability of [deleted] sites, yet they do not offer equal features, the agency could reasonably assess a weakness in SAI’s technical approach–in evaluating the comprehensiveness of its proposed strategy for meeting the government’s information access related needs–based on its experience that more DoD personnel used the [deleted] site with its fewer features, or used [deleted] sites consuming more time.
SAI asserts that the agency failed to provide adequate discussions. Specifically, the SSB assigned a weakness under the past performance factor based on the appearance that the government had [deleted] under delivery orders with two different agencies. GAO states that discussions with offerors must include proposal deficiencies and significant weaknesses, and adverse past adverse past performance information to which an offeror has not had an opportunity to respond. On the other hand, where an offeror was provided an opportunity to respond to adverse performance information during its performance of the contract, the agency need not provide an additional opportunity to respond during discussions.
The record shows that SAI was given an opportunity to respond to the performance issue during performance of the other delivery orders, and that it provided its explanation. The record further shows that, in assessing this weakness under the past performance factor, the SSB took SAI’s explanation into account. Further, it does not appear that this weakness had any significant impact on the evaluation; the SSB assigned SAI two strengths under this factor, specifically identified the weakness as “minor,” and did not even mention the weakness when it later praised SAI’s past performance references as “impressive” and “directly relate[d] to the work at hand.” GAO concludes that there was no requirement that the matter be raised during discussions.
Lastly, SAI asserts that, by arriving at a single, overall adjectival rating for each proposal, the agency violated and obscured the impact of this scheme. In this regard, it notes that its proposal was rated acceptable overall, even though it was assigned multiple strengths under the experience, past performance, and small business factors, compared to no strengths for LexisNexis’s proposal. In SAI’s view, the agency gave undue weight to the technical approach/capability factor by rating LexisNexis’s proposal as good overall, based on its strengths under that factor. However, the RFP provided that each of the four non-price factors was of equal importance.
SAI attaches unwarranted weight to the agency’s use of adjectival ratings. Whether assigned to each factor or to a proposal overall, adjectival ratings are not binding on the source selection official but, rather, serve only as a guide to intelligent decision making. The essence of the evaluation is reflected in the evaluation record itself, not the adjectival ratings. The record here shows that the SSB evaluated each factor individually, included a detailed discussion of each strength and weakness, and based its tradeoff recommendation on the relative strengths and weaknesses of the proposals, not the overall adjectival ratings. While SAI’s proposal was assigned strengths under factors where LexisNexis’s proposal was not, the SSB’s focus on LexisNexis’s strengths under the first evaluation factor does not evidence a change in the relative weights of the remaining factors; it merely shows that the first factor became the discriminator between the competing proposals. In this regard, the SSB specifically noted that SAI’s proposal’s strengths under the other factors, including its impressive past performance and experience performing identical or directly-related work, were largely offset by SAI’s significant weaknesses regarding its [deleted] websites and subcontracted [deleted] services. Likewise, although the SSA recognized an additional strength for SAI under the small business factor, she specifically found that this strength did not materially alter the relative technical value of the proposals, and made her source selection based on the totality of the offerors’ proposals. Since the evaluation was detailed and consistent with the RFP’s evaluation scheme, and the source selection was based on the relative strengths and weaknesses of the proposals, there is no basis to find the evaluation unreasonable based on the adjectival ratings. The protest is denied.