The protester alleged that GSA failed to conduct meaningful discussions by not raising, in pre-corrective action discussions, significant weaknesses that resulted in the proposal being rated unacceptable in a post-corrective action evaluation.
GAO has held that, when an agency seeks revised proposals and performs a new evaluation, that reevaluation may identify flaws in a materially unchanged proposal that the agency would have been required to discuss with the offeror, had the flaws been identified when the proposal was initially evaluated.
In that situation, the agency must reopen discussions in order to disclose its concerns.
GSA argued Life Science’s pre- and post-corrective action proposals were materially different, but GAO found that the content that gave rise to the significant weaknesses was present in both proposals but had been overlooked in the initial evaluation.
Since the Agency did not advise Life Science of the significant weaknesses in its initial proposal when conducting discussions, GAO sustained the protest and recommended GSA reopen the procurement, conduct meaningful discussions, and evaluate revised proposals.
The protester alleged that it should have been assigned a strength for its transition plan, which exceeded the Navy’s schedule for workload turnover and would be completed “well in advance of the 60-day requirement.”
The Agency argued that, as GAO has held, it is not required to document determinations of adequacy or explain why a proposal did not receive a strength for a particular item. The Agency represented that it reviewed the protester’s transition plan and did not consider the proposed ability to transition faster than the 60-day requirement to be a strength.
GAO found this insufficient and that the agency “provides no explanation—contemporaneous or otherwise—to support the reasonableness of its evaluation of Tech Marine’s transition plan.”
GAO stated it failed to see, and the Agency failed to explain, why exceeding the transition schedule would not benefit the Agency.
GAO recommended the Agency reevaluate Tech Marine’s proposal and make a new source selection determination.
The protester alleged the Air Force’s best-value tradeoff decision was unreasonable because it consisted of a “mechanical comparison of point scores that did not take into account the underlying bases for those scores” and because the source selection authority only considered the awardee’s proposal and did not compare the merits of the offerors’ proposals.
GAO agreed, noting that the award determination document discusses only the awardee’s proposal, with no reference to R&K’s proposal.
The Agency had argued that the selection authority had relied on the evaluation board’s recommendation and rationale, but GAO found that, even if that were the case, that recommendation was “based entirely on a mechanical evaluation of point scores” without a qualitative comparison of underlying strengths and weaknesses and was therefore unreasonable.
GAO recommended the agency perform and document a proper best-value tradeoff.
Selex ES argued that the solicitation, which sought proposals to replace a tactical air navigation system, was unduly restrictive of competition because it could be interpreted to require offerors meet the navigation system’s flight check qualification and readiness level requirements at the time of proposal submission rather than at the time of award or performance.
GAO found that the solicitation was patently ambiguous regarding whether the requirements are due at time of proposal submission or at time of award and that Selex ES was prejudiced by the ambiguity and GAO sustained the protest on that basis.
GAO declined to address whether it would be unduly restrictive of competition to expect offerors to meet the requirements at the time of proposal submission given the patent ambiguity.
GAO recommended the agency amend the solicitation to clarify when various requirements are due.
Insight Technology challenged a solicitation requirement that offerors possess capability maturity model integration (“CMMI”) level 3 certification at the time of proposal submission.
GAO denied the argument that the certification requirement was unduly restrictive of competition overall but agreed with the protester that requiring the certification at time of proposal submission, rather than at time of award, was unreasonable.
GAO found nothing in the record to support a need for the certification prior to the start of performance, much less before award.
The agency argued earlier certification was necessary to allow it to evaluate offerors, but GAO found no reason the objective determination of whether the offeror possessed the certification would need to be completed until immediately before award, at the earliest.
GAO recommended the agency amend the solicitation to allow certification at time of award or performance.
Office Depot challenged GSA’s attempt to use a single blanket purchase agreement to purchase both hardware/industrial supplies and office supplies, arguing that the evaluation scheme was unreasonable because it was predicated on consideration of incomplete historical sales information for the office supplies.
The protester argued that the market basket to be used for evaluation was based on historical sales of hardware and industrial items, to the exclusion of data on office supplies, which resulted in a market basket which didn’t reasonably represent the likely purchases of office supplies.
GAO agreed that the Agency had unreasonably relied on limited historical data regarding office supply sales to predict its future buying needs and that it had no (or virtually no) basis for forecasting estimated quantities of office supplies.
GAO recommended GSA conduct additional market research and revise the solicitation with a reasonable representative sample of estimated hardware/industrial items and office supply purchases.
GAO sustained the protester’s allegation that the Department of Health and Human Services had engaged in unequal discussions.
Once an agency chooses to conduct discussions, it must do so with all offerors in the competitive range under FAR 15.306(d)(1).
Here, the Agency did not dispute that it engaged in discussions with only the awardee, but claimed it had established “a de facto competitive range of one.”
GAO found that the record was devoid of any documentation or support for the Agency’s contention that a competitive range had been established before holding discussions with only one offeror, the awardee.
GAO stated, “[w]here, as here, there is no record or evidence that the agency established a competitive range, we will not infer the existence of a de facto competitive range, in order to validate an agency’s omission of an offeror during its conduct of discussions.”
GAO sustained the protester’s challenge where the Defense Department considered a factor that was not reasonably encompassed within the evaluation criteria.
The RFQ provided that the agency would evaluate technical approach to determine the extent to which the approach demonstrated understanding of the requirements, feasible methods to accomplish required tasks, and reliable methods for ensuring quality deliverables.
In comparing the protester and awardee’s quotations, though, the agency found that the protester’s approach was only “somewhat superior” because it relied on “experience and not necessarily innovation.”
GAO found this conclusion inconsistent with the RFQ’s evaluation criteria, which did not put offerors on notice that their approach would be devalued if rooted in experience rather than innovation.
GAO found no clear nexus between the identified evaluation criteria and the agency’s consideration of experience and innovation and sustained the protest accordingly.
Insight Technology Solutions, Inc. B-420133.2, .3, .4
Protester alleged that the awardee misrepresented the experience of one of its proposed key personnel, claiming the individual had 9 years of relevant experience when in fact the individual did not meet even the minimum required 5 years of experience.
The protester pointed to the proposed key person’s LinkedIn profile in support of the argument that the individual had less than the required experience.
GAO agreed that the awardee materially misrepresented the individual’s relevant experience and found the agency relied on that misrepresentation in making its source selection decision.
GAO recommended, as a result, that the Agency exclude the awardee’s proposal from the competition.
GAO also found that the agency had engaged in disparate treatment by crediting the awardee for its approach to back-filling vacancies, but not crediting the protester’s proposal despite “nearly identical” language.