Agency Reasonably Evaluates Contract Proposal as Not Meeting Requirements of Solicitation
Bid protest decisions of the Government Accountability Office (GAO) and the U.S. Court of Federal Claims help shape the law of how federal acquisition contracts should be awarded. What is often overlooked, however, is that bid protest decisions can serve an important secondary purpose. These cases frequently detail the evaluation of contract proposals by federal agencies in best value procurements and thus provide valuable guidance to contractors as to what separates a successful proposal from an unsuccessful proposal. A recent example of a protest decision offering such insights is Infinity Systems Engineering, LLC, B-419043 2020 WL 9210680 (November 20, 2020). In this case, the GAO denied a protest where it found the agency reasonably determined the disappointed offeror did not meet the requirements of the solicitation.
Solicitation of Contract
The Department of the Air Force issued a request for proposals for support services for the Tools, Applications and Processing (TAP) Laboratory and the Overhead Persistent Infrared Battlespace Awareness Center. Support services included systems engineering, administrative security, facilities maintenance, information/cyber defense, and configuration management services. The RFP contemplated issuance of a single primarily cost-plus-fixed-fee contract. Award was to be made on a best value tradeoff basis, considering technical proposals, past performance, and price. The technical factor was significantly more important than past performance, which was in turn more important than price. Technical proposals had to address four subfactors. An “unacceptable” technical rating for any subfactor rendered a proposal ineligible for award.
Rejection of Proposal
Infinity submitted a proposal in response to the RFP. In evaluating this proposal under the staffing plan subfactor, the Air Force found two deficiencies. Concerning security, the RFP required that the contractor maintain physical security systems for the TAP Lab which would include a government-provided access control system and badging system. In reviewing Infinity’s proposal, the agency concluded the contractor did not propose an appropriate number of full-time employees (FTEs) to meet the security requirement. According to the Air Force, a total of 4.21 FTEs were required for the security guard position. Infinity proposed less than this number of employees by combining the responsibilities of a security guard and badging officer. The agency also assigned a deficiency because Infinity supposedly did not satisfy the security clearance requirement for its configuration manager.
Based on these two deficiencies, the agency rated Infinity’s proposal as unacceptable under the staffing plan subfactor and thus not eligible for award. Infinity protested the agency’s evaluation of its staffing plan as unacceptable. It argued the deficiency findings were unreasonable.
Standard for GAO Review of Evaluation of Proposal by Agency
In reviewing protests challenging an agency’s evaluation of proposals, the GAO does not reevaluate proposals or substitute its judgment for that of the agency. Rather, the GAO examines the record to determine whether the agency’s judgment was reasonable and in accordance with the stated evaluation criteria and applicable procurement statutes and regulations. A protester’s mere disagreement with the agency’s judgment about the relative merits of competing proposals does not establish that the evaluation was unreasonable.
In its protest before the GAO, Infinity disagreed with the Air Force’s evaluation and alleged the agency assessed the number of FTEs based merely on a mechanical comparison to an undisclosed minimum requirement of FTEs, without giving any consideration to the protester’s specific technical approach. Infinity maintained that its staffing plan demonstrated how it could perform the required work with fewer FTEs than the agency believed were necessary.
The GAO found the record established that the specifics of Infinity’s staffing plan, including its proposal to use certain FTEs to perform the requirements of both the security guard and badging officer positions simultaneously, failed to show how it could meet the RFP’s requirements for the security guard position with less staffing than the agency-calculated minimum of 4.21 FTEs. Of particular significance to the GAO, the agency had observed that the badging officer’s established duty hours of 7:30 a.m. until 4:00 p.m. would preclude that person from performing all of the duties of a security guard as well.
Based on its review of the agency’s evaluation of the Infinity proposal, the GAO noted that although the protester contended its proposal was sufficient or should have been interpreted differently, it is an offeror’s responsibility to submit a well-written proposal, with adequately detailed information that clearly demonstrates compliance with the solicitation and allows a meaningful review by the procuring agency.
Because the GAO found the Air Force reasonably assessed a deficiency against Infinity under the staffing plan subfactor, it did not need to address the security clearance requirement for the configuration manager. The protest was denied.
Lessons to be Learned
Infinity Systems Engineering presents a scenario often found in protest decisions. The agency rejects a proposal for not meeting the requirements of the statement of work. A protest follows in which the offeror contends the agency misinterpreted the proposal. To resolve the protest, the GAO relies on the high standard of review to conclude the contractor did not establish the agency’s evaluation of the proposal was unreasonable. As here, the GAO may further imply the proposal was not clearly written.
Based on the published decision, it is impossible to say whether Infinity’s proposal was rejected because (1) its staffing plan did not in fact satisfy the requirements of the RFP, or (2) the Air Force failed to understand the plan. It is also unknown whether any confusion on the part of the agency was the fault of the proposal. Nevertheless this decision, like many similar rulings, offers a cautionary tale. Contractors must make every effort to ensure the merits of their technical proposals are plainly communicated to the agency. What might be clear inside the company may not be understood by an outsider. To this end, third party reviews of draft proposals could be an important tool for securing more contract awards.