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Integrated Management Resources Group, Inc., B-400550, December 12, 2008
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Link: GAO Opinion
Agency: Pension Benefit Guaranty Corporation
Disposition: Protest denied.
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GAO Digest:
- Protest challenging the agency’s cost realism evaluation of awardee’s proposal is denied where the agency’s workpapers demonstrate that the conclusions reached by the evaluators were reasonable.
- Protest challenging the evaluation of technical proposals is denied where the record establishes that the agency’s evaluation was reasonable and consistent with the evaluation criteria.
- Protest challenging the agency’s evaluation of past performance is denied where the record establishes that the agency properly considered the relevance of the protester’s references when deciding what weight, if any, to give each reference.
General Counsel P.C. Highlight:
IMRG first protests that PBGC failed to perform a proper cost realism evaluation of Randstad’s proposal. The protester contends that both applicable procurement regulations and the RFP required the agency to perform a cost realism analysis to determine the extent to which an offeror’s proposed costs represent what the government realistically can expect to pay for the proposed effort. By contrast, IMRG argues, PBGC conducted nothing more than a cursory examination of the awardee’s proposed costs, and failed to submit any evidence supporting the conclusion that no exceptions to Randstad’s proposed direct or indirect labor rates were warranted. The protester maintains that the agency’s failure to reasonably determine Randstad’s realistic costs adversely affected the agency’s resulting source selection decision. GAO states that when an agency evaluates proposals for the award of a cost-reimbursement contract, an offeror’s proposed estimated cost of contract performance is not considered controlling since, regardless of the costs proposed by the offeror, the government is bound to pay the contractor its actual and allowable costs. Consequently, a cost realism analysis must be performed by the agency to determine the extent to which an offeror’s proposed costs represent what the contract costs are likely to be under the offeror’s technical approach, assuming reasonable economy and efficiency. A cost realism analysis is the process of independently reviewing and evaluating specific elements of each offeror’s cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed, reflect a clear understanding of the requirements, and are consistent with the unique methods of performance and materials described in the offeror’s proposal. An offeror’s proposed costs should be adjusted when appropriate based on the results of the cost realism analysis. GAO’s review of an agency’s cost realism evaluation is limited to determining whether the cost analysis is reasonably based and not arbitrary, and adequately documented.
The RFP instructed offerors that their cost proposals were to include breakdowns of labor hours, direct and indirect labor rates, and other costs, and stated that the agency’s evaluation of an offeror’s proposed costs would include consideration of the extent to which it reasonably reflected the offeror’s proposed technical approach. IMRG argues that PBGC failed to perform a proper cost realism evaluation of Randstad’s proposed direct and indirect labor rates. The protester argues that given Randstad’s much higher staffing levels than those proposed by IMRG, and the two offerors’ nearly equal overall costs, the agency should have been on notice that Randstad’s costs were probably understated. IMRG also argues that the agency’s cost evaluation report merely concludes that Randstad’s direct and indirect labor rates are realistic without demonstrating the basis for this conclusion. The fact that no exception was taken by the agency cost analyst, IMRG argues, does not substantiate the reasonableness of the agency’s conclusions. As noted above, while PBGC’s original report to GAO included only its cost evaluation report which indicated the conclusions reached, the agency later also provided the contemporaneous cost evaluator’s workpapers and underlying documentation supporting those conclusions. Randstad’s cost proposal set forth its proposed direct labor rates by labor category. The complete record reflects that the agency cost evaluator then compared Randstad’s proposed direct labor rates with the offeror’s current direct labor rates for the very individuals that Randstad was now proposing to employ for the contract here. Finding that in each instance Randstad’s proposed labor rates were higher than those it was currently paying to the same employees, the agency reasonably concluded that the proposed direct labor rates were realistic. Similarly, the agency compared Randstad’s proposed indirect rates with the offeror’s current budgeted and prior actual indirect rates submissions and found the offeror’s proposed indirect rates to be consistent with these submissions. GAO has no basis to find that the agency’s conclusion that Randstad’s proposed indirect rates were realistic ones was unreasonable.
IMRG next protests the agency’s evaluation of technical proposals. Among other things, the protester maintains that two of the perceived advantages of Randstad’s proposal–its use of incumbent personnel and a superior performance monitoring plan–were not advantages at all. Rather, IMRG argues, its proposal in these specific areas was equal or superior to that of Randstad and, thus, should have received equal credit for these strengths. IMRG also contends that because the alleged technical advantages in Randstad’s proposal were not meaningful, any award decision based on these perceived advantages was unreasonable. GAO states that in reviewing an agency’s evaluation, GAO will not reevaluate offerors’ proposals; instead, GAO will examine the agency’s evaluation to ensure that it was reasonable and consistent with the solicitation’s stated evaluation criteria and applicable procurement statutes and regulations. An offeror’s mere disagreement with the agency’s evaluation is not sufficient to render the evaluation reasonable. GAO’s review of the record here shows that the agency’s evaluation of proposals was unobjectionable.
Among the RFP’s technical approach subfactors was one regarding the offeror’s proposed performance measurement and management program. Specifically, the solicitation required offerors to describe all processes, tools and controls to ensure that accepted quality levels are met or exceeded and that timely and accurate reporting of performance metrics is provided to PBGC. Also, as to the experience and qualifications of personnel factor, the agency’s evaluation was to be based on the extent to which the offeror provides qualified and experienced personnel with relevant experience to perform this contract. In its proposal, incumbent Randstad proposed its current workforce for both the key personnel and remaining staff positions. Also, with regard to the performance measurement and management program subfactor, Randstad proposed the development of a web-based Performance Excellence Tool to track metrics, report results, and objectively measure individual and team success.
After completing its evaluation of each offeror’s proposal, the TEP found Randstad’s proposal to be technically superior to that of IMRG. The evaluators concluded that the largest difference between the proposals was with regard to the experience and qualifications of personnel factor, and that Randstad’s proposal was superior because: (1) it utilized mostly incumbent personnel; (2) added a Performance Control Manager as well as an impressive individual to fill that role; (3) proposed an experienced Assistant Project Manager; and (4) planned staffing levels of [DELETED] people (by comparison, IMRG’s staffing level was [DELETED] FTEs). The contracting officer subsequently adopted the TEP’s findings and conclusions as the basis for her cost/technical tradeoff determination.
As a preliminary matter, the record clearly indicates that the TEP was aware that IMRG was proposing an existing performance monitoring tool while Randstad was proposing a developmental performance monitoring tool. Contrary to IMRG’s assertion, the agency did not find Randstad’s performance monitoring plan superior to IMRG’s. Rather, the agency evaluators considered Randstad’s and IMRG’s monitoring plans to be equivalent strengths under the applicable evaluation factors. Moreover, the agency did not consider Randstad’s monitoring tool to be a discriminator between the two offerors’ proposals when making its determination of technical superiority. IMRG essentially argues that the agency should have given more weight to an area in which it had a perceived advantage over Randstad. This amounts to mere disagreement with the agency’s evaluation of proposals, which does not make the evaluation unreasonable.
IMRG also argues that the agency improperly judged Randstad’s proposal as superior as to the experience and qualifications of personnel factor when IMRG also proposed the use of incumbent personnel. GAO finds no merit to the protester’s assertion here. As set forth above, the TEP considered each offeror’s proposed use of the incumbent Randstad workforce to be an evaluation strength. Nonetheless, when determining the relative technical merits of the offerors’ proposals, the TEP properly considered the fact that Randstad currently employed the incumbent workforce, while IMRG had merely established a stated goal of capturing 98 percent of the incumbent workforce. It is reasonable, GAO thinks, for an agency to distinguish between the actual existing situation (i.e., that Randstad currently employs the incumbent workforce) and what an offeror proposes to accomplish. Moreover, the fact that the TEP considered both offerors’ planned use of the incumbent Randstad workforce to be strengths does not preclude the evaluators from recognizing that the offeror’s proposals were not in fact equal in this regard.
Finally, IMRG protests the agency’s evaluation of its past performance. Of foremost concern, the protester contends that the evaluation was unreasonable because of PBGC’s failure to consider as relevant various past performance references provided by IMRG in its proposal. IMRG argues that had the agency properly evaluated its past performance, it would have received a rating that was equal to or greater than that received by Randstad.
The RFP required offerors to provide at least three references evidencing past performance during the last 3 years that was –the same as, or substantially similar to— the services described in the PWS here. RFP sections L.8, M.3. Among the past performance information deemed relevant by the solicitation and which offerors were required to provide were the dollar value and length of prior contract efforts. Regarding the agency’s evaluation of past performance, the RFP also informed offerors that, –[w]hen discussing previous Government and/or private sector projects similar to that proposed, provide sufficient detail to convince evaluators of the relevance of the skills and objectives involved. GAO states that where a solicitation requires the evaluation of offerors’ past performance, it will examine an agency’s evaluation to ensure that it was reasonable and consistent with the solicitation’s evaluation criteria and procurement statutes and regulations. When made applicable by the solicitation, GAO reviews a past performance evaluation to determine the similarity or relevance of the past performance information considered by the agency. A protester’s mere disagreement with the agency’s judgment does not establish that an evaluation was improper.
As a preliminary matter, the agency evaluators properly considered the relevance of each of IMRG’s past performance references before deciding what, if any, weight to give it. Further, the agency’s decision not to consider relevant the offeror’s CDC Foundation, OCC, and EPA references was reasonable. As set forth above, the current solicitation involves a wide range of professional pension benefit administration support services, estimated at more than $22 million over four years and involving at least [DELETED] personnel. By contrast, the CDC Foundation reference was a $92,000, four-person contract for financial management and stipend administration services for an eight-month period. Likewise, IMRG’s OCC and EPA references involved support services (i.e., librarian, technical writer/editor, information technology, and administrative support services) and communication center services (i.e., photocopying, shipping and receiving, supplies, mail), respectively. Quite simply, the agency reasonably determined that IMRG’s references here were not similar in scope and/or size to the current solicitation. IMRG does not dispute the size and scope of its past performance references. The protester instead argues that at least four of its past performance references (presumably all but the CDC Foundation reference) were comparable in size and scope to the work described in the current solicitation. IMRG fails to show, however, how the services in its past performance references were the same as, or substantially similar to, those described in the PWS. In sum, IMRG’s argument amounts to mere disagreement with the agency’s judgment and, thus, does not establish that the past performance evaluation was unreasonable. The protest is denied.
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Detica, B-400523; B-400523.2, December 2, 2008
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Link: GAO Opinion
Agency: Department of Homeland Security
Disposition: Protest denied.
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GAO Digest:
- Protest that successful vendor has an impermissible “biased ground rules” type of organizational conflict of interest is denied, where record shows that, contrary to protester’s assertion, former agency official working for successful vendor did not participate in planning the acquisition or preparing the solicitation.
- Protest that agency evaluator was biased in favor of successful vendor is denied where protester presents no evidence to support its assertion and record shows that evaluator in question rated protester’s and successful vendor’s quotations consistently.
- Protest challenging agency’s technical evaluation of protester’s quotation is denied where record supports agency’s evaluation conclusions, including its criticisms of protester’s quotation.
- Protest challenging agency’s selection decision is denied where record reflects reasoned judgment of source selection official, and selection was consistent with terms of solicitation.
General Counsel P.C. Highlight:
Detica asserts that CNA has an impermissible OCI, and that one of the agency’s evaluators was biased in favor of CNA. In this connection, the protester asserts that an individual, who formerly was the director of the agency’s office of preparedness policy, planning, and analysis (PPPA), resigned from his position and subsequently was hired by CNA. The protester maintains that the former PPPA director was involved both in planning the subject acquisition, and in identifying funds for the acquisition. GAO states that the Federal Acquisition Regulation (FAR) generally requires contracting officers to avoid, neutralize, or mitigate potential significant OCIs in order to prevent unfair competitive advantages or the existence of conflicting roles that might impair a contractor’s objectivity. As a general matter, OCIs can be broadly categorized into three groups: biased ground rules, unequal access to non-public information, and impaired objectivity. Substantial facts and hard evidence are necessary to establish the existence of an OCI; mere inference or suspicion of an actual or apparent OCI is insufficient for GAO to sustain a protest.
GAO concludes from the evidence presented that the former director was involved in the preliminary stages of preparing the agency’s annual budget; that he was aware that the budget in its draft form included funding for some unspecified research and analysis work; that he was no longer a federal employee at the time the SPAR requirement was identified with specificity and did not participate in preparing the solicitation or SOO; and that identifying the agency’s actual requirements and preparing the acquisition package (including the SOO) was accomplished by other individuals who were not in contact with the former director. Simply stated, the evidence does not support a finding of an impermissible OCI on the part of CNA.
Regarding bias, the protester alleges no more than that the former director maintained a professional relationship with one of the agency’s technical evaluators, and that this somehow resulted in bias in favor of CNA. GAO states that government officials are presumed to act in good faith and GAO will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition; where a protester alleges bias, it must not only provide credible evidence clearly demonstrating bias against the protester or in favor of the successful vendor, but must also show that this bias translated into action that unfairly affected the protester’s competitive position. Detica has not met this standard.
First, as noted, the protester alleges only generally that the former director and an agency technical evaluator maintained an ongoing professional relationship. Detica’s employee’s statements are unsupported as to the nature and extent of the alleged relationship between the agency’s evaluator and the former director. In any case, even if the protester’s inferences regarding the nature and extent of the alleged relationship are correct, nothing in the record shows that this alleged relationship translated into action that unfairly affected the protester’s competitive position. In this regard, the evaluator in question assigned both firms’ quotations excellent ratings under the solution and key employee factors, and while she assigned CNA an excellent rating and Detica only a very good rating under the past performance factor, Detica has not challenged the agency’s evaluation conclusions regarding either of those ratings. GAO concludes that there is no basis for a finding of bias on the part of the evaluator in question.
In its initial protest, Detica asserted that the agency misevaluated its quotation by 1) assigning it a weakness for not including a fully developed SOW, notwithstanding that it also found that the quotation presented a clear and comprehensive technical approach; 2) downgrading it for emphasizing information technology, despite the protester’s view that this was what was called for under the solicitation; and 3) downgrading it for offering too many managers and too few analysts. GAO states first that the agency’s evaluation conclusions appear reasonable and supported by the record. In this connection, it is not GAO’s role to reevaluate quotations in response to an evaluation challenge; rather, it will examine the record to determine whether the agency’s evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. A protester’s mere disagreement with the agency’s evaluation judgments, without more, is insufficient to show that the evaluation was unreasonable.
Both Detica’s initial arguments, and its largely repetitive comments, fail to address the substance of the agency’s criticism of the firm’s quotation. First, a review of the firm’s quotation shows that the evaluators’ judgments were reasonable and accurate. Of the personnel identified by name in the Detica quotation, [deleted] are described as performing management-type functions; of these [deleted] are specifically described as performing duties for the firm’s proposed management cell, while the remaining [deleted] are designated as leading the analytical and reporting cell and technical development cell respectively. Of the [deleted] remaining personnel identified by name in the firm’s quotation, only [deleted] a Detica employee designated as engaged in performing analytical (as opposed to managerial or leadership) functions, while the remaining personnel are all subcontractor personnel. The agency’s conclusion appears reasonable in light of this array of managerial and analytical personnel.
Detica lastly argues that the source selection decision was unreasonable and lacks adequate documentation. Detica’s arguments focus largely on the agency’s price reasonableness determination and on the adequacy of the documentation supporting the price/technical tradeoff. Regarding the price reasonableness determination, Detica asserts that the agency failed to give meaningful consideration to vendors’ quoted rates; it maintains that, in light of the disparity between the low- and high-priced quotations, the agency was required to perform some meaningful reasonableness evaluation. GAO states that under FAR sect. 8.404, agencies are specifically advised that they are not required to independently evaluate the reasonableness of prices because, in the context of an FSS procurement, the General Services Administration (GSA), prior to awarding the firm’s underlying FSS contract, has already determined that the firms’ fixed unit or hourly rate prices are fair and reasonable. The agency here was not required to perform an independent evaluation to determine the reasonableness of the firms’ unit prices.
The record includes a table comparing the prices received and the government’s independent estimate ($18 million). While the record shows that CNA’s price was not the lowest received, nonetheless, it was below the government estimate and was found to include a level of effort comparable to that used to prepare the government estimate. GAO has no basis to question the adequacy of the agency’s price analysis or the determination that CNA’s total price was fair and reasonable.
As for the price/technical tradeoff, the protester claims the record is inadequate to justify the agency’s payment of a higher price than Detica’s. Contrary to the protester’s assertion, the record here includes adequate documentation to support the agency’s source selection. Specifically, the source selection document (SSD) includes a detailed analysis of the respective quotations’ evaluated strengths and weaknesses. Significantly, the SSD shows that the agency identified eight strengths with CNA’s quotation and no weaknesses. Among other things, the agency noted that CNA’s quotation articulated all of the task requirements in the SOO and explained their methodology in a clear and concise manner; outlined a unique SOW that tied directly to the agency’s objectives; that the firm had strong experience and a proven track record with the agency; and laid out a staffing plan that was realistic, thorough and appropriate. In comparison, the agency identified only four strengths in Detica’s quotation, and four weaknesses. All three offerors understood the problem, but only CNA’s solution was viable and responsive to the problem. Detica offered an [deleted] solution that did not achieve the larger research and data collection objective of which [deleted] was only a small part. Since the SDD details the evaluation judgments and basis for the agency’s determination that CNA’s quotation represented the best value, GAO concludes that the agency adequately documented the rationale for its source selection. The protest is denied.
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Installation Management Company, B-400613; B-400613.2, December 31, 2008
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Link: GAO Opinion
Agency: Department of Defense
Disposition: Protest denied.
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GAO Digest:
Protest challenging agency’s evaluation of protester’s past performance and technical proposal is denied where record shows that the evaluation was reasonable.
General Counsel P.C. Highlight:
IMC challenges the evaluation of its past performance. In this regard, the RFP required offerors to submit information regarding relevant contracts and subcontracts performed within the four year period prior to issuance of the solicitation. IMC listed nine contracts and provided resumes for several key personnel. One listed contract was not considered in the evaluation because it was performed prior to the relevant four year period; two contracts for grounds maintenance at military bases in the U.S. were considered moderately relevant; and the remaining six contracts were deemed only slightly relevant on the basis that “the scope of work described was either unquantified or small in scope” based on the dollar value of the contracts. In this regard, the agency noted that, while the contract under the RFP is valued at approximately $25 million annually, the average annual value of all of IMC’s listed contracts was only $3.9 million. This led the PPET to conclude that there was no evidence in IMC’s proposal that IMC had performed work of the scale and level of integration of the requirement here. In addition, the PPET concluded that the key personnel resumes submitted by IMC did not “reflect a strong direct connection to the scale of work required by the GSMP,” since they either did not reflect experience with work on the same scale as the GSMP or were unclear with regard to the employee’s role in performance. Accordingly, IMC’s prior contracts were rated only slightly relevant overall. With regard to customer satisfaction, however, IMC’s performance was rated outstanding. Consistent with the scheme established in the RFP for the rating of performance risk, IMC’s slightly relevant and outstanding performance ratings resulted in an overall moderate performance risk rating.
IMC challenges the agency’s relevance assessment on the basis that its listed contracts encompassed “a larger area logistically” than does the GSMP requirement, and that the employees whose resumes it submitted had extensive experience in performing multiple contracts simultaneously over a wide geographical area, in custodial or grounds maintenance work, or in a school environment. GAO’s review of IMC’s past performance submission confirms the agency’s finding that most of IMC’s submitted references were for contracts that were significantly smaller in size and scope. As for the protester’s assertion that its submitted contracts were “geographically located throughout the United States encompassing a larger area logistically,” GAO finds nothing unreasonable in the agency’s conclusion that experience with geographically dispersed, but relatively small contracts is not equivalent to experience with contracts of similar scope, size and complexity to the requirement here.
Nor does GAO find persuasive IMC’s assertion that its submitted resumes reflect experience on the part of its proposed personnel with the management of contracts similar in scope, size and complexity to the instant requirement. However, GAO’s review of the resume indicates that the cited figure of $39 million was for total “sales” for the period from 1971 to 1993; this amount therefore clearly is not comparable to the $25 million estimated annual value of the GSMP requirement. Moreover, because this alleged experience dated from 1971 to 1993, it was not within the relevant four year period after issuance of the RFP. Similarly, the protester refers to the resume of another of its employees that it maintains reflects current performance in a school environment exceeding the size of the GSMP. The record shows, however, that this employee was not assigned a role in IMC’s proposal.
Technical proposals were evaluated under two subfactors–management and technical–encompassed by the technical factor. Under the management subfactor, offerors were required to describe their management approach with regard to a phase-in schedule, staffing plan and procedures, subcontractor management, communication, and quality control plan. Under the technical subfactor, offerors were to describe their technical approach, provide a hazardous material and waste management plan, and provide an asbestos management plan.
The technical evaluation team (TET) concluded that IMC’s proposal “contained major errors, omissions, and deficiencies,” and that IMC “did not have a clear understanding of the Government’s requirements.” Specifically, the evaluators found four broad deficiencies in IMC’s proposal: its staffing was very low, particularly for grounds maintenance and routine maintenance, and was inadequate to meet oversight requirements; its asbestos plan did not adequately address air sampling; its phase-in schedule did not meet the solicitation requirement for a 30′day phase-in period and did not address the required coordination with local agencies; and its subcontracting plan did not take into consideration all areas where subcontract work would be required. Consequently, the TET rated IMC’s technical proposal unsatisfactory and high risk.
While IMC believes its staffing should have been deemed adequate, its arguments fail to establish that the agency’s concerns were unreasonable. For example, notwithstanding IMC’s proposed cross-utilization approach, neither that approach nor the proposal of specifically allocated grounds maintenance team members, on its face, addressed the relatively small number of personnel proposed to perform this work. GAO notes, in this regard, that IMC’s proposed staffing levels were significantly lower than those proposed by the awardee–overall, while SKE proposed a total of 32 FTEs for grounds maintenance, IMC proposed only 6.61 FTEs for the same requirement. As the agency points out, IMC’s reliance on cross-utilization of personnel is a shortcoming under these circumstances, since cross-utilization presupposes that adequate staffing was proposed for routine and preventive maintenance, such that personnel would be available when grounds maintenance requirements arise. The agency found that this was not the case, and IMC has not shown otherwise.
The TET found that IMC’s quality control approach did not provide for sufficient quality control staffing to ensure adequate oversight. In this regard, the agency noted that IMC had proposed to use middle managers and workers in a quality control role, which the agency determined would not provide appropriate oversight, since the middle managers would in effect be evaluating themselves. IMC challenges the agency’s concern, noting that its proposal provided for a “quality control manager” who will instruct supervisors and managers to ensure that they exceed accepted standards of performance, and asserting that its proposal does not provide for inspections by workers below the Hausmeister-level. As noted by the agency, however, IMC’s proposal specifically abjured “separating Quality Control personnel and production personnel” and instead proposed to “empower all of the production employees as quality control staff.” GAO finds that the agency could reasonably conclude that IMC’s proposal provided for “forcing the QC function down” such that managers would be responsible for evaluating their own performance, which the agency reasonably viewed as a weakness.
The TET found that IMC’s asbestos management plan failed to address air sampling in a way that demonstrated an understanding of procedures mandated under the Asbestos Hazard Emergency Response Act of 1986 (AHERA), 15 U.S.C. sections 2651 et seq. (2006). IMC generally asserts that it provided an adequate asbestos monitoring plan. However, GAO finds that the record supports the agency’s evaluation. In this regard, the RFP required that offerors address compliance with AHERA and air sampling requirements in their asbestos management plan. IMC’s asbestos management plan was found to address air sampling in only a perfunctory way, merely stating, without elaboration, that IMC would “take air-monitoring readings in addition to those furnished by any asbestos contractor used by IMC, as a final reading to ensure the clean air quality in any asbestos removal area.” The agency noted that, among other omissions, IMC’s proposal did not address the difficulty of following required air sampling protocols in Germany; in that country, there is no legal requirement for Transmission Electron Microscopy testing and, therefore, there are few, if any, laboratories in Germany to perform the necessary tests, resulting in the need to send most samples to the U.S., with appropriate accountability. Given IMC’s failure to address this issue, GAO thinks the agency could reasonably find IMC’s asbestos management plan to be inadequate. The protest is denied.
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4D Security Solutions, Inc., B-400351.2; B-400351.3, December 8, 2008
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Link: GAO Opinion
Agency: Department of Energy
Disposition: Protest denied.
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GAO Digest:
Agency reasonably evaluated and rejected the protester’s quotation as technically unacceptable where the protester submitted an ambiguous quotation that failed to comply with a material specification requirement in the solicitation.
General Counsel P.C. Highlight:
4D challenges the evaluation and rejection of its quotation as technically unacceptable for failing to comply with the RFQ specification requiring a minimum sustained bandwidth for the system of 4 Mbps. 4D complains that had the agency considered its quotation in its entirety, the agency would have concluded that its quoted system satisfied the referenced RFQ specification. GAO states that in reviewing protests of an agency’s evaluation, GAO does not reevaluate vendors’ quotations; rather, it reviews the record to ensure that the agency’s evaluation was reasonable and consistent with the terms of the solicitation. Clearly stated solicitation technical requirements are considered material to the needs of the government, and a quotation that fails to conform to such material terms is technically unacceptable and may not form the basis for award. A vendor is responsible for affirmatively demonstrating the merits of its quotation and risks the rejection of its quotation if it fails to do so. Here, GAO finds that the agency reasonably evaluated and rejected 4D’s quotation as technically unacceptable.
As stated above, the RFQ required a vendor to show how [its] system [would] meet the requirements of the specification. 4D failed to unambiguously demonstrate that its quoted system would satisfy the RFQ’s minimum sustained bandwidth specification of 4 Mbps. Again, in one part of its quotation, 4D stated that there would be sustained data rates of [deleted] Mb/s, while in other parts of its quotation, 4D offered to comply with the referenced specification. In light of these inconsistent statements in its quotation, GAO believes that the agency could, and did, reasonably conclude that it was not clear from the face of 4D’s quotation that its quoted system would satisfy the RFQ’s minimum sustained bandwidth specification and, as a result, 4D’s quotation was reasonably evaluated and rejected as technically unacceptable. Moreover, 4D’s statements of compliance with the RFQ specification were not sufficient, and did not otherwise cure, the inconsistent statements in its quotation. On this record, GAO has no basis to question the agency’s actions. The protest is denied.
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Sector One Security Solution, B-400728, December 10, 2008
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Link: GAO Opinion
Agency: Department of State
Disposition: Protest denied.
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GAO Digest:
Protester’s contention that the agency improperly refused to consider its proposal is denied where there is no evidence that the agency received the proposal by the solicitation due date or that improper government action caused the failure of the postal service to make timely delivery, and where the record shows that the protester failed to follow the delivery instructions in the solicitation.
General Counsel P.C. Highlight:
Sector One argues that the agency should have accepted its proposal because the protester sent it by United States Postal Service (USPS) Express Mail and because the protester believes the USPS carrier attempted to deliver the proposal prior to the closing time for receipt. GAO states that it is the responsibility of each firm to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the submission. Where late receipt results from the failure of a vendor to reasonably fulfill its responsibility for ensuring timely delivery to the specified location, the late offer may not be considered. An offer that arrives late may only be considered if it is shown that the paramount reason for late receipt was improper government action, and where consideration of the proposal would not compromise the integrity of the competitive procurement process. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time.
The agency denies receiving or rejecting the Sector One proposal submission that was the subject of the alleged delivery attempt by the USPS carrier. As explained above, since USPS does not deliver mail to the building where the Office of Acquisition is located, the RFP contained a P.O. Box for mailed proposals, and allowed for hand-carried proposals provided delivery was coordinated with the contracting officer. By its own admission, the protester did not follow the instructions in the RFP for submission of its proposal in that it made no arrangements with the contracting officer for hand-carried delivery. The evidence submitted by the protester does not establish that the agency actually received the protester’s submission or that there was an attempt to deliver the proposals to the agency before the closing time established in the solicitation. As explained above, the record here, at best, only demonstrates that the USPS carrier attempted to deliver the protester’s submission to some DOS location and does not specifically demonstrate whether anyone at DOS refused to accept delivery. The record shows that the paramount reason for the nonreceipt of the protester’s submission is the protester’s failure to follow the solicitation instructions to either mail its proposal to the designated P.O. Box number or make the proper arrangements for hand-carried delivery. In short, there is nothing in the record showing that any affirmative government action deprived the protester of the ability to make a proper delivery of its proposal. GAO denies the protest.
Posted by Maria R Jones 
