Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest sustained.
Protest challenging the award of contracts for transcription services at multiple locations is sustained where the record shows that: (1) the evaluation of the protester’s proposal under the most important technical factor was internally inconsistent and unreasonable; (2) the agency relied on a single overall adjectival rating and on prices in making its selection decision, and the overall rating failed to capture the differences between the relative ratings of the offerors’ proposals, or to reflect a reasonable conclusion that proposals with the same overall rating were technically equal; and (3) the agency tradeoff decision included only the two awardees and did not consider the protester for award, even at locations where the protester’s proposal was rated higher than the awardee’s proposal.
General Counsel P.C. Highlight:
With respect to its evaluation, T-C challenges each of the deficiencies assessed against its proposal under the technical evaluation factor–the most heavily-weighted factor. First, T-C argues that it was unreasonable for the VA to assess both a strength and a deficiency for T-C’s proposal on the same issue–i.e., whether its transcriptionists would have experience transcribing for physicians who were not native English speakers. One of the strengths identified for T-C’s proposal explained that “[a]ll transcriptionists must have experience with ESL (English as second language) physicians.” At the same time, one of the deficiencies identified for T-C’s proposal under this same subfactor was that the proposal “[d]oes not mention skill with ESL (English as second language) physicians.” There is nothing in the contemporaneous record reconciling the apparent contradiction in these assessments. When asked by GAO to address the issue directly, the VA acknowledged that the evaluation was erroneous on this point.
Second, T-C argues that it was unreasonably assigned a deficiency under technical subfactor 1 for failing to provide a resume for each transcriptionist, because the RFP did not require proposals to include that information. GAO asked the VA to identify where the RFP required this information. In its supplemental report, the VA responded that “[t]he factor referenced paragraph 10 of the PWS which indicates that resumes will be provided.” Thus, the VA argued that it was proper for the VA to evaluate T-C’s proposal as “satisfactory,” because it failed to provide resumes. The RFP does not support the VA’s argument on this point. The only reference to resumes is in the statement in the PWS that “Curriculum vitae of employees will be provided to each of the facilities.” The language in this sentence, however, plainly describes an event that will occur in the future and specifically after award of particular locations. Therefore, GAO finds that this sentence described a performance requirement, and not information that an offeror needed to provide in its proposal. Although these examples above are taken from subfactor 1, they demonstrate the flawed evaluation approach taken by the VA evaluators with respect to the technical factor generally. From GAO’s review of the record, GAO concludes that the flawed evaluation also affected the other three subfactors.
T-C also argues that the award decision was improperly based only on the overall ratings, and did not take into account the greater significance of the technical factor assigned by the RFP. GAO states that it will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions, that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award.
The Post/Price Negotiation Memorandum (PNM) shows that the CO based his decision on the overall adjectival rating for the two awardees, and their total prices. The record thus shows that the CO did not consider–and may not have known–that T-C’s proposal was rated higher than the awardee’s proposal under the most significant technical factor, and several of the subfactors. Consistent with GAO’s view of the contemporaneous record, during the course of this protest, the VA has emphasized that the proposals of both T-C and the awardee were assigned overall ratings of “good,” as evidence that T-C’s proposal had no advantage the awardee’s proposal that could justify its higher price. To the contrary, the RFP placed higher significance on the technical factor, indicating that the agency would consider paying more for an offeror’s superior technical approach. The elimination of T-C’s proposal from further consideration in some of these tradeoffs, without a reasonable supporting explanation in the contemporaneous record–or a finding that the proposals rated “good” overall were technically equal, despit e the underlying differences in their ratings–is inconsistent with the weighting of the non-price factors stated in the RFP. The protest is sustained.