Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
- Consideration of innovations and/or creative approaches in proposals’ responses to solicitation requirements did not constitute reliance on an unstated evaluation criterion where solicitation provided for relative weighting of evaluation factors in the evaluation rather than review for acceptability alone.
- Protest that price/technical tradeoff was improperly based on price where technical factors were to be more important than price is denied where the record shows that the contracting officer reasonably determined that the price premium associated with the higher-rated proposal was not warranted, given the level of technical competence available at the lower price.
- Protest that the source selection decision failed to consider the full range of the protester’s technical capabilities is denied where the record shows that the contracting officer conducted a comprehensive review of the technical proposals that supported the stated evaluation conclusions.
General Counsel P.C. Highlight:
ViroMed first alleges that the agency improperly considered an unstated evaluation criterion in evaluating its proposal, and that the agency’s source selection decision was based improperly on price and failed to consider the technical benefits of the technology it proposed.
With respect to the allegation that the agency improperly relied on an unstated evaluation criterion, ViroMed states that during its debriefing the agency informed it that, while its proposal met all requirements of the solicitation under the technical approach factor, it had not included any innovations or excesses, and therefore received an acceptable rather than highly acceptable rating for technical approach. ViroMed contends this represents an agency admission that it relied on innovations as a technical factor in its award determination and thereby violated the requirement that an agency identify all major evaluation factors in the solicitation. GAO states that where, as here, a solicitation indicates the relative weights of evaluation factors, as opposed to providing for selection of the lowest-priced, technically acceptable proposal, the agency is not limited to determining whether a proposal is merely technically acceptable; rather, proposals may be evaluated to distinguish their relative quality by considering the degree to which they exceed the minimum requirements or will better satisfy the agency’s needs. With specific regard to the consideration of innovations and/or creative approaches to distinguish the relative quality of proposals, GAO has held that an agency can properly consider both the extent to which proposals exceed the RFP requirements and the extent to which offerors used innovative measures to respond to those requirements. Accordingly, under the circumstances here, the agency’s consideration of any innovations contained in a proposal’s response to the technical requirements does not amount to reliance on an unstated evaluation criterion.
ViroMed next argues that the agency’s price/technical tradeoff was based improperly on price where the RFP indicated that technical proposals would be more important than price. GAO’s review of price/technical tradeoff decisions is limited to determining whether the tradeoff was reasonable and consistent with the solicitation’s evaluation criteria. Notwithstanding a solicitation’s emphasis on technical merit, an agency may properly select a lower-priced, lower technically rated proposal if it decides that the cost premium involved in selecting a higher-rated, higher-priced proposal is not justified, given the acceptable level of technical competence available at the lower price.
The record in this case indicates that the contracting officer did not give undue weight to price in making the award decision. Rather, the record demonstrates that the contracting officer acted in accordance with the RFP’s direction that technical factors were more important than price, but concluded that CDD’s lower-priced, lower-rated proposal represented the best value to the government. As noted above, while CDD’s proposal was rated equal to ViroMed’s proposal under the technical approach, corporate experience, and past performance factors, and higher than ViroMed’s proposal in socio-economic plan, ViroMed in fact was ranked first technically on the basis of the contracting officer’s independent judgment that ViroMed’s corporate experience and past performance were superior to CDD’s, despite the equal, highly acceptable, technical ratings. In making the selection decision, however, the contracting officer, after recognizing that the RFP specified that the evaluation of proposals considers the offeror’s technical proposal more important than the offeror’s price proposal, determined that the technical superiority of ViroMed’s proposal cannot be offset by the overall price differential of $4,965,179.50 or 13.46% that exists between ViroMed and CDD. Given that under the RFP here it was within the contracting officer’s discretion to decide that the price premium involved in selecting ViroMed’s higher-rated, higher-priced proposal was not justified in light of the acceptable level of technical competence available at CDD’s lower price, GAO sees no basis to conclude that the contracting officer’s decision here was inconsistent with the RFP or otherwise unreasonable.
Finally, ViroMed asserts that the agency’s source selection decision was unreasonable because the record does not demonstrate that the contracting officer considered the full range of ViroMed’s technical capabilities in making the determination that its proposal was not worth the price premium over the CDD proposal. Specifically, ViroMed alleges that the agency’s source selection decision unreasonably failed to consider the technical benefits of its proposed testing system, including mitigation of false positive test results due to cross contamination, which ViroMed asserts is a concern associated with the highly sensitive HIV screening tests required by the solicitation. GAO states that an agency need not address each and every feature of a proposal in documenting a source selection decision, but must show only that its evaluation conclusions are reasonably based.
Here, the SSDM demonstrates that the contracting officer thoroughly and independently reviewed the offerors’ proposals, and made specific comparisons to differentiate between the two proposals. For example, under the corporate experience and past performance factors, the SSDM notes that ViroMed had performed testing services virtually identical in scope and complexity to that required by the RFP, and had done so in volumes that exceeded the RFP requirements to a greater degree than had CDD, which resulted in ViroMed being ranked first technically. Under the corporate experience and past performance factors, however, the contracting officer noted that: “this greater magnitude or volume of testing in and of itself does not attribute to ViroMed’s technical superiority. With increasing automation, clinical laboratory testing has achieved greater scalability over the years. This is demonstrated by the fact that both ViroMed and CDD have exceeded the magnitude requirements of the solicitation . . . thereby demonstrating that both offerors possess the requisite instrumentation, personnel, management skills, pre/post analytical and quality assurance protocols, etc. to successfully perform the requirements of the solicitation.”
With regard to technical approach specifically, the technical approach factor under the RFP encompassed far more than an evaluation of each offeror’s proposed testing systems. In this regard, the SSDM demonstrates that in evaluating each offeror’s proposed technical approach, the contracting officer, consistent with the RFP and SSP, considered: (1) how the offerors intended to maintain facilities, automated data processing services and data transmissions at the level of security required for Department of Defense networks; (2) how they intended to secure electronic data transfers using an approved encryption standard that meets federal security guidelines; (3) the specific technology and resources, and the extent of automation they proposed to meet the high volume testing requirements of the RFP; (4) how they intended to successfully accomplish the required shipping transportation services for specimens from locations both within and outside the United States; (5) the specific tests and test manufacturers they proposed to use to accomplish each test required by the solicitation; and (6) the labor mix and quantity of personnel they proposed to use to accomplish the requirements of the RFP.
Concerning ViroMed’s specific allegation that the agency failed to consider the technical benefits of its proposed testing system, the record shows that the contracting officer did specifically discuss that testing system, [DELETED], in the SSDM. The contracting officer noted that [DELETED] would provide the same quality control features and the same operating capabilities as currently in place, but would result in much more cost efficiencies. However, after a detailed review of the six areas of each offeror’s technical approach, including each offeror’s proposed testing system, the contracting officer concluded that the only excesses that existed among each of the offerors’ revised Technical Approaches was their CAP accreditation. Contrary to ViroMed’s assertion that the contracting officer’s conclusion indicates a failure to consider the full range of ViroMed’s capabilities, the record shows that the contracting officer thoroughly reviewed the offerors’ technical approaches and concluded that of the technical features proposed by the two offerors, only the CAP accreditation exceeded the RFP requirements. The protest is denied.