Link: GAO Opinion
Agency: Department of Energy
Disposition: Protest sustained.
Protest challenging evaluation of awardee’s proposed approach to complying with solicitation’s performance work statement (PWS) is sustained where the record shows that a reasonable offeror would not have understood the solicitation to allow proposing a technical approach that was inconsistent with the PWS.
General Counsel P.C. Highlight:
Stoller first argues that NNSA improperly waived or relaxed a material solicitation requirement in the PWS that required offerors to prepare two documents for each of three soils sub-project corrective action units (CAU). Navarro proposed, and the agency accepted, a technical approach whereby three soils sub-project CAUs–Johnny Boy, Area 20, and Sedan–were consolidated into a single CAU. The protest ground essentially argues that the agency accepted a proposal that deviated from the requirements of the solicitation in such a way that other competitors, reasonably following the terms of the solicitation, could not have anticipated was permitted. GAO initially states that it is a fundamental principle of government procurement that competitions must be conducted on an equal basis, that is, offerors must be treated equally and be provided with a common basis for the preparation of their proposals. Contracting officials may not announce in the solicitation that they will use one evaluation scheme and then follow another without informing offerors of the changed plan and providing them an opportunity to submit proposals on that basis. GAO will sustain a protest that an agency improperly waived or relaxed its requirements for the awardee where the protester establishes a reasonable possibility that it was prejudiced by the agency’s actions.
The PWS stated that “[t]he contractor shall comply with the Federal Facility Agreement and Consent Order (FFACO).” The PWS also stated that “[t]he contractor shall perform the following activities,” and listed approximately 50 individual activities, such as preparing documents for specific CAUs. As relevant here, the PWS identified six activities, pertaining to the three soils sub-project CAUs at issue, as follows: (1) 2011, Complete Area 20 Soils CAU CAIP; (2) Complete Sedan Soils CAU CAIP; (3) Complete Area 20 Soils CAUs CADD/CR; (4) Complete Sedan Soils CAU CADD/CR; (5) 2012, Begin Johnny Boy Soils CAU CAIP; and (6) 2013, Begin Johnny Boy Soils CAU CADD/CR. In addition to the fiscal year dates listed above, the RFP contained a schedule derived from the DOE Life-Cycle Baseline, Revision 7 (LCBL), which contained specific milestones and deadlines for each activity.
Navarro’s approach included the following statement, “Streamlining and cost savings. Where appropriate, we will consolidate CAUs to reduce their number and the required FFACO documentation to characterize and close sites. For instance, we will characterize and complete three of the cratering test CAUs required to be closed by the RFP (Johnny Boy, Area 20, and Sedan) with a single set of FFACO documents. This allows us to reduce the schedule from five years to two years and to implement cost reductions of approximately $[deleted].” In its evaluation of Navarro’s technical proposal, the agency concluded that the awardee’s proposed consolidation of the CAUs was a significant strength under the technical approach evaluation factor, because “The offeror proposes to achieve or exceed FFACO milestones with potential savings by completing all soils PWS requirements in FY 2012, a full year ahead of schedule. Some of the key elements of this approach which support its feasibility include the following: . . . b) The Offeror[‘s] efficient approach to closing the CAUs, which include the cratering test locations by using one set of regulatory documents (e.g., CAIPs, and CADD/CRs) to reduce the number of document production and review cycles with resulting cost savings and streamlining of the schedule.”
GAO finds that Stoller reasonably understood the solicitation to require offerors to propose technical solutions based on the CAUs as listed in the PWS. The agency acknowledges that although the list of CAUs had been updated in FFACO Appendix II prior to the issuance of the RFP, the PWS requirements reflect an older version of the appendix. In its proposal, Stoller stated that it was aware that the list of CAUs in the PWS was not current, but understood the solicitation to require offerors to propose the requirements as stated in the PWS: “While we have based our approach, cost estimate, and proposal discussions on the PWS and the ‘Description of Work’ document presented on the web site, we know that changes [to Appendix II] have occurred.” GAO states that offerors were not reasonably on notice that they could propose, and the agency would accept, consolidating the CAUs listed in the PWS. GAO finds that the plain language of the PWS anticipated that each item, as listed, was a separate requirement. As a result, allowing Navarro to consolidate the CAUs was a material waiver or relaxation of the proposal-submission requirements of the solicitation because it allowed the awardee to propose reduced costs and accelerate its performance schedule–a feature which the agency recognized as a significant strength.
GAO also concludes that Stoller was prejudiced here because, but for the agency’s improper action, Stoller would have had a substantial chance of receiving an award. Stoller was prejudiced because the record shows that Navarro’s consolidation of the soils sub-project CAUs contributed to a portion of the difference between the offerors’ evaluated cost.The agency’s cost realism evaluation also concluded that the consolidation of the CAUs and acceleration of the soils sub-project schedule demonstrated that Navarro’s proposed staffing and hours were realistic. Finally, in the SSD, the agency found that Navarro’s accelerated schedule was a significant strength that rendered its proposal superior to Stoller’s under the technical approach subfactor, and offset Stoller’s higher rating under the key personnel subfactor. On this record, GAO concludes that Stoller was clearly prejudiced by the combined effects of the waiver or relaxation of the requirement on the cost and technical evaluations of Navarro’s proposal, and GAO therefore sustains the protest.