Link: GAO Opinion
Agency: Department of Energy
Disposition: Protest sustained on one issue; denied on all others.
Keywords: Terms of the Solicitation
General Counsel P.C. Highlight: Where a protester challenges a specification as unduly restrictive of competition, GAO will review the record to determine whether the restrictions imposed are reasonably related to the agency’s needs. The adequacy of the agency’s justification is ascertained through examining whether the agency’s explanation is reasonable, that is, whether the explanation can withstand logical scrutiny.
USA Jet Airlines, Inc. (USA Jet) and Active Aero Group, Inc. (AAG) protest the terms of a request for proposals (RFP), issued by the Department of Energy (DOE), National Nuclear Security Administration (NNSA), for aircraft support and maintenance services.
The DOE issued the RFP as an unrestricted solicitation and amended it several times. As amended, the performance work statement (PWS) provides for the contractor to maintain (or oversee maintenance) and provides related services for multiple aircraft that the DOE is purchasing. Initially, the contract requires services for one Boeing 737?400 aircraft, followed by options for up to two more 737s, and additional options for other aircraft. The RFP contemplates a cost plus fixed fee contract for a base year and up to four option years. The RFP provides for the contract to be awarded on a best value basis, considering technical approach, past performance, and evaluated cost. The RFP explains that the technical evaluation will consider whether “the offeror thoroughly described how the work will be accomplished,” including the technical risks, their impact, and the measures to avoid or minimize those risks. The RFP also explains that the technical approach evaluation will review the offeror’s technical capabilities, key personnel qualifications and availabilities, corporate experience, management plan, and phase-in plan.
The RFP provides basic information about the aircraft for offerors to use in preparing their proposals, including the expected age of each aircraft at the time of acquisition, and advises that each aircraft is expected to have an annual flight time of 500 hours. The RFP also specifies that each offeror must “provide evidence in its proposal that the contractor is ISO 9001, ISO 9100 or AS 9110 certified on or before the proposal due date,” and explain how the certification will be maintained throughout the contract.
In providing services, the RFP provides that offerors will be required to follow a variety of manuals and directives that were not included in the RFP. Although offerors requested copies of the manuals and procedures identified in the RFP, the DOE responded that they would be provided after award.
USA Jet argues first that the solicitation restricts competition by requiring offerors to hold ISO 9001, ISO 9100, or AS 9110 certification at the time of proposal submission. Second, USA Jet argues that the DOE should accept FAA Part 121 certification as an alternative to ISO or AS certification. And third, USA Jet argues that the RFP is ambiguous by failing to provide manuals and policies, which the PWS requires the contractor to follow in performing the work, and thus lacks information necessary to prepare a proposal. AAG joins in the arguments that the absence of manuals and policies renders the RFP defective, but AAG does not join the challenges to the requirement for ISO or AS certification.
GAO states that with respect to the requirement for ISO or AS certification at the time of proposal submission, the determination of a contracting agency’s needs and the best method for accommodating them are matters primarily within the agency’s discretion. However, where a protester challenges a specification as unduly restrictive of competition, GAO will review the record to determine whether the restrictions imposed are reasonably related to the agency’s needs. The adequacy of the agency’s justification is ascertained through examining whether the agency’s explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. An agency’s otherwise legitimate requirements regarding an offeror’s demonstrated ability to meet contract requirements may not generally be applied at a point in time prior to when such qualifications become relevant.
The DOE states that offerors must possess an ISO or AS certification at the time of proposal submission because the certification process “could take several months to several years to complete depending on the maturity and motivation of the organization,” and because the DOE is unwilling to waive the requirement to allow performance to begin without a certification. The reasons provided by the DOE do not support requiring ISO or AS certification at the time of proposal submission. The fact that a diligent prospective offeror could face a lengthy process to obtain an ISO or AS certification raises exactly the prospect that USA Jet claims exists here–that the firm can obtain ISO or AS certification in time for performance to be consistent with the certificate, even though it cannot do so by the proposal due date. The fact that the DOE is unwilling to waive the requirement does not mean that the requirement must be met when proposals are due. GAO sustains the protest to the extent that USA Jet objects to the requirement that offerors possess an ISO 9001, ISO 9100, or AS 9110 certificate at the time of proposal submission.
Next the protesters argue that the solicitation is ambiguous; that is, that the RFP does not provide information necessary for offerors to prepare proposals, or for the DOE to evaluate those proposals on an equal basis.
Even though GAO accepts the protesters’ premise that the actual maintenance and service requirements for each particular aircraft cannot be known in advance, for purposes of preparing and evaluating proposals for a cost reimbursement contract, the DOE has provided a reasonable basis from which to assess offeror technical understanding and costs. The protest by USA Jet is sustained in part. AAG’s protest, and the remaining grounds of the protest by USA Jet, are denied. GAO recommends that the DOE amend the RFP to represent its actual needs concerning when ISO or AS certification is required, and that the DOE reopen the competition and allow offerors to submit new or revised proposals.