Link: GAO Opinion
Agency: United States Coast Guard
Disposition: Protest denied.
Protest that agency improperly evaluated proposals, resulting in a flawed best value determination, is denied where the record shows that the agency reasonably evaluated proposals in accordance with the terms of the solicitation, and that the agency’s best value determination was reasonable.
General Counsel P.C. Highlight:
Tesoro alleges that the agency improperly and unequally considered the risk associated with its 3-story approach under the means and methods factor and schedule factors. Tesoro also contends that the agency’s evaluation of the awardee’s proposal under the schedule factor was inconsistent with the terms of the RFP. Finally, Tesoro argues that the agency’s best value decision was unreasonable and inconsistent with the terms of the solicitation. GAO states that in reviewing a protest challenging an agency’s technical evaluation, GAO will examine the record to determine whether the agency’s evaluation conclusions are reasonable and consistent with the terms of the solicitation and applicable laws and regulations. Mere disagreement with the agency’s evaluation is not sufficient to call it into question.
First, Tesoro asserts that it was improperly penalized based on the agency’s failure to perform its duties in analyzing the feasibility of its 3-story approach, and not for any risk of contractor performance. The RFP anticipated a 4-story design for the building. The protester’s 3-story design created a concern for the agency that beneficial floor plan adjacencies, developed over months of internal agency deliberations, would be disrupted to such an extent that the facility, as proposed by the protester, would be unacceptable to the building’s users. In this regard, the risk that resulted in the downgrading of the protester’s proposal under the means and methods factor–as described in the contemporaneous evaluation documents–was that the building users would find the protester’s proposal unsuitable thereby undermining the viability of Tesoro’s approach. Furthermore, as the agency notes, given Tesoro’s indications during oral presentations that its 3-story approach could not be converted to a 4-story building, this risk was of a paramount concern. Thus, Tesoro is misplaced in its allegation that agency work-avoidance was the cause of its failure to be rated more highly.
The protester next alleges that, because the RFP did not contemplate the performance of design reviews, the agency’s claim that such a review would be necessary to consider the acceptability of the protester’s proposed design was contrary to the RFP’s terms. The question at issue asked whether the Coast Guard would require a formal design review meeting after each specified design review shown in section 011660-220.127.116.11 of the specifications. Given the limited focus of the question, the Coast Guard’s response to that question could not reasonably be interpreted to mean that under no circumstances would the agency require a design review. Thus, the agency’s determination that the breadth of the changes contained in the protester’s design warranted a design review meeting to ascertain the suitability of the proposed facility for the user was in no way inconsistent with the agency’s response to question 11 or the terms of the RFP.
Third, the protester also asserts that the agency disparately evaluated proposals, where the awardee’s design and Tesoro’s own 3-story approach deviated in comparable ways from the agency’s draft design. The Coast Guard identified specific ways in which the protester’s proposed floor plans deviated from the plans that had been developed in conjunction with the building’s users based on a consideration of their needs. Those alterations to the established floor plans included, among others, the following: separating the planning and response spaces, which had been adjacent, by three other spaces; relocating the “intel offices,” which had been centrally located, to the other side of the building; separating the Division Chief’s and the Supervisor Officer’s offices, which had been adjacent; and reducing the number of restrooms. These deviations fundamentally reconfigured the floor plans from those included with the RFP, which had been prepared after extensive collaboration with the facility’s end users and consideration to their functional needs.
Tesoro argues that the agency employed an unstated evaluation criterion when it upgraded the rating for the awardee’s schedule from satisfactory to good based on the considerable detail provided by the awardee in its proposal. According to the protester, the RFP only allowed for a more favorable rating where a firm’s schedule provided for completion of the project prior to the deadline established by the RFP, which the awardee’s proposal did not do. GAO states that as a general matter, while agencies are required to identify the major evaluation factors in a solicitation such as the one here, they are not required to identify all areas of each factor which might be taken into account, provided that the unidentified areas are reasonably related to or encompassed by the stated criteria. When an RFP asks firms to provide a discussion of their approach, schedule, transition plan, or the like, the agency evaluation may reasonably consider the level of detail provided in the requested discussion. GAO has repeatedly held, where a firm merely indicates that it will meet a particular requirement, thereby discussing only the end results, but provides little or no detail about how it plans to meet or exceed the requirement, the agency may reasonably downgrade the proposal. Conversely, a greater level of detail may increase agency confidence in the firm’s ability to do what it says it will do, resulting in a higher rating. Ultimately, an agency’s evaluation is dependent upon information furnished in a proposal, and it is the firm’s burden to submit an adequately written proposal for the agency to evaluate.
Here, the RFP did not ask simply for a final schedule completion date. Rather, the Coast Guard required firms to provide a discussion of their proposed schedule, specifying that the schedule be task-oriented, graphically-presented, and indicate the number of calendar days by which milestones are to be achieved. Moreover, to the extent the RFP alerted potential firms to the fact the agency would view accelerated schedules “more favorably,” this provision cannot reasonably support the proposition that the existence of an accelerated schedule was the only basis for achieving a “good” rating, as argued by Tesoro. Because the announced evaluation criterion reasonably encompassed an assessment of the level of detail provided by firms in their proposals, GAO has no basis to conclude the agency’s evaluation of the awardee’s proposal under the schedule factor was inconsistent with the terms of the RFP.
The protester also challenges the agency’s consideration of the betterments proposed by the firms in its price evaluation and selection decision, where the RFP simply stated that price would be evaluated on the basis of the total of the base items. The record reflects that the agency identified two prices for each firm, one reflecting the total for the base items and a second reflecting the price of the base items plus the price associated with any betterments that the agency believed were worthy of award as a result of the technical evaluation. While Tesoro correctly notes that, pursuant to the terms of the RFP, price was to be evaluated “on the basis of the total sum of the Base Items,” it fails to recognize the fact that the RFP also required firms to separately price their proposed betterments, advised that the betterments would be considered in the technical evaluation, and provided that the government reserved “the right to award some, none, or all of the proposed betterments.” Thus, to the extent the agency decided that certain betterments proposed by Tesoro and the awardee had value based on the technical evaluation, and would be awarded if the firm received the task order, it was incumbent on the agency to also consider the price associated with these betterments as part of any selection decision. Failing to consider the price associated with the betterments in the selection decision, as Tesoro suggests, is fundamentally inconsistent with the best-value tradeoff concept, which, to be meaningful, requires a weighing of the value and benefits associated with a firm’s approach against their associated cost to the government.
Finally, the protester challenges the reasonableness of the agency’s best-value tradeoff. GAO states that where, as here, a solicitation provides for a price/technical tradeoff, the agency retains discretion to make award to a firm with a higher technical rating, despite a higher price, so long as the tradeoff decision is properly justified and otherwise consistent with the stated evaluation and source selection scheme. GAO finds nothing unreasonable in the agency’s technical evaluations, on which the best-value tradeoff was made. The agency recognized that the awardee was higher priced and, as discussed above, documented that it judged the value added by the awardee’s proposal to be worth the additional cost. The protest is denied.