Link: GAO Decision
Protestor: The Clay Group, LLC
Agency: Department of Veterans Affairs
Disposition: Protest Sustained.
- Protest challenging agency’s procurement of bathroom paper products is sustained where the record reflects that the evaluation methodology utilized by the agency was inconsistent with the terms of the solicitation relating to the relative importance of evaluation factors.
- Protest is sustained where the record does not support a finding that the agency reasonably evaluated quotations under evaluation factors set forth in solicitation, and the record shows that the source selection decision was based on a mechanical comparison of firms’ point scores.
- Awardee’s product sample cannot be said to satisfy salient characteristics established by solicitation, where there is no indication in its quotation that its sample complied with such characteristics and the record does not indicate that the agency evaluated the awardee’s sample for compliance with salient characteristics.
General Counsel PC Highlight:
The Clay Group, LLC protested the establishment with AF&S Products and Services, LLC of a BPA for bathroom paper products for Veterans Integrated Service Network (VISN) 3. The RFQ identified 12 items required to be listed on the vendors’ FSS contracts, and furnished salient characteristics for each item. The RFQ stated that products must be size-compatible with existing dispensers at VA facilities, or the vendor must adapt existing dispensers to fit the offered product at no additional cost to the agency. It incorporated answers to vendor questions that appeared to offer conflicting answers regarding whether substitutions were acceptable for the brand name items.
After receiving both an agency report and a supplemental report, the GAO held an outcome prediction ADR conference call with the protestor and agency. When the GAO indicated that it would likely sustain the protest, the agency agreed to take corrective action. After several weeks of indicating that it would take corrective action, the agency requested that the GAO issue a decision, six days before the deadline for doing so.
The GAO agreed with The Clay Group that the evaluation methodology employed by the agency was fundamentally inconsistent with the terms of the solicitation. Although the RFQ indicated that the evaluation factors were listed in descending order of importance, the agency used a weighted scheme that subjected some lower-ranked factors to multiples of ten, while higher-ranked factors were only subject to multiples of five. The GAO also agreed with The Clay Group that the record failed to demonstrate a reasonable basis for the low and inconsistent scores assigned to The Clay Group’s quotation under the past performance factors. Although The Clay Group submitted past performance evaluations with “excellent” ratings, the agency assigned the protestor scores corresponding to “below satisfactory” and “below marginal” with no explanation in the record. The GAO then agreed that the agency had no reasonable basis for determining that products offered by AF&S complied with the stated salient characteristics, given that there was no indication that the agency intended to permit variation from the salient characteristics and that the record did not show that the evaluators considered AF&S’s compliance.
In procurements for brand name items, vendors should pay particular attention to whether they are permitted to quote equal products, and, if so, what salient characteristics will be considered by the agency in evaluating brand name or equal products. If the RFQ is unclear, vendors must ask for clarification from the agency during Q&A periods. Vendors whose quotes are not selected should always request a debriefing, so as to better understand any shortcomings in their quote and to ensure that the agency evaluated quotes in accordance with the criteria in the solicitation.