This month’s Bid Protest Roundup covers three recent U.S. Government Accountability Office (GAO) decisions: a challenge to an agency’s decision to take corrective action, a protest that an agency unfairly ignored a proposal after an offeror disregarded revised instructions, and a successful protest of an agency’s best-value tradeoff determination. The common thread in these cases is the contours of agency discretion and a seasonally-appropriate reminder to heed directions, whether they take the form of solicitation terms or a warning not to venture into the old abandoned cabin in the woods.
Citizen Contracting Group, LLC[1]
In Citizen Contracting Group, LLC, the GAO denied an awardee-turned-protester’s attempt to thwart the Department of Veterans Affairs’ decision to take corrective action in response to a disappointed offeror’s agency-level protest. Citizen was one of two offerors who submitted quotations to install electronic locks at a Department of Veterans Affairs medical center. After the agency found the vendors’ quotations equally-rated in the solicitation’s technical capability and past performance evaluation factors, the Government selected Citizen for award as the lowest-priced bidder.
The disappointed bidder lodged an agency-level protest, arguing that Citizen lacked the required number of years of experience, as well as the necessary certification to sell, install, and service the particular locks to be provided. The agency reviewed the protest and the procurement record, and determined there were indeed infirmities in the evaluation process. Among other discrepancies, the agency determined the awardee’s quotation had multiple defects, did not conform to solicitation requirements, and consequently should not have received award. Additionally, a number of inconsistencies were found in the solicitation itself. The agency proceeded to take corrective action and cancelled both the award and the solicitation and decided to re-solicit the requirement following additional market research.
Citizen subsequently filed a protest at the GAO, arguing that the agency’s reasons for re-soliciting the requirement was unfounded and that the agency exceeded its authority to terminate for convenience when it cancelled the contract. Citizen also brought allegations of contract steering, improper collusion, and a quid pro quo between the agency and the disappointed bidder.
The GAO denied the protest, holding that protester’s failure to possess the required certification alone was a sufficient ground for the agency to cancel the award and take corrective action. Moreover, neither the protester nor the agency disputed that Citizen lacked a required certification. The defects the agency found in the solicitation included confusing past performance criteria that may have led to receipt of quotations that did not “represent[] the best value to the government.” GAO also held that the agency’s corrective action to remedy perceived defects were within its broad discretion and dismissed Citizen’s more sensational charges of collusion and quid pro quo as speculative and lacking support in the record.
Takeaways:
Agencies enjoy broad authority to take corrective action. The GAO will review corrective action by evaluating the award procedures to determine if the award was improper and, if so, whether the corrective action is proper. Here, the agency had enough grounds to take corrective action when determined “that award was not necessarily made on a basis most advantageous to the government.”
Challenging an agency’s decision to take corrective action can be tricky. From the outside there may be no way to discover the procurement errors the agency found. There are also customer relations to consider; the challenge questions the agency’s reasoned judgment. One thing a protester can do is review the solicitation and its own proposal to identify any obvious flaws. The odds challenge to corrective action has little chance if the winning proposal was ineligible for award. Here it was possible for the litigant to know that its proposal lacked certifications required by the solicitation by checking the proposal against solicitation requirements.
Framaco-Bozdemir JV, LLC[2]
In this next case, failure to follow supplemental proposal instructions led to an agency disregarding a proposal altogether, and serves as another reminder that changes to solicitation instructions must be followed. In Framaco-Bozdemir (“FB”), the GAO denied a post-award protest asserting that the agency unreasonably failed to consider protester’s proposal after the protester failed to follow submission instructions provided by the agency following corrective action.
FB was an offeror for a United States Agency for International Development contract to provide design and construction services for the U.S. embassy in Juba, South Sudan. The solicitation provided for a two-phase evaluation process under the design-build procedures in FAR subpart 36.3. Although Framaco-Bozdemir (“FB”) was among the offerors invited to submit a phase two proposal, it was ultimately not selected for award. FB filed a protest with the GAO, and after the agency agreed to take corrective action, the protest was dismissed as academic.
As part of its corrective action, the agency decided to re-evaluate phase two proposals. In a letter dated May 17, 2022, the agency asked FB to submit a revised phase two proposal according to the enclosed submission instructions, which included a new, different email address for proposal submissions. On June 1, the agency updated its request for a revised phase two proposal. This letter explained that it “replaced” the May 17 letter, and provided amended phase two instructions, an amendment to the RFP, and instructions as to where final proposals should be submitted, which included the email address identified in the May 17 letter. Two hours before the submission deadline, FB sent its proposal to the e-mail addresses listed in the pre-corrective action phase two instructions from the original solicitation, rather than the e-mail address in the May 17 or June 1 letter. An hour after the submission deadline, the contracting officer found FB’s e-mailed proposal, and forwarded it to the correct e-mail address. The agency later notified FB that it was eliminated from consideration because FB failed to deliver its proposal to the correct e-mail address, did not include a required schedule, and did not meet formatting requirements.
FB lodged another protest at the GAO, alleging the agency’s decision to eliminate it from the competition was unreasonable. Specifically, FB argued that the June 1 instructions were not binding because they were not a formal amendment to the solicitation, and that it therefore complied with the submission requirements. GAO denied this protest ground, finding that the solicitation “detailed that phase two submission instructions would be provided at a later date,” which in this case took the form of the cover letter’s directions. Thus, the solicitation was clear that separate submission instructions would be provided for phase two, and the cover letters provided those instructions. The GAO went further, pointing out that even if the submission instructions in the cover letter were not binding, FB submitted its phase two proposal using the procedures for phase one proposals. Therefore, FB could not claim it merely used an appropriate submission procedure provided by the solicitation. And even if FB contended that the solicitation was defective for failing to provide submission instructions, that would constitute an untimely challenge to a patent ambiguity.
The GAO also distinguished two cases in which the GAO determined proposal submissions were not late. The first, AECOM Tech. Services, B-411862, Nov. 12, 2015, 2015 CPD ¶ 353, concerned a proposal that was uploaded to the wrong section of the government system dedicated to receive the proposals. The GAO pointed out its decision was based on specific factors, which included that the agency was contemporaneously aware of the proposal’s submission, and that the agency intended to make multiple awards, so no competitor could claim it was harmed by accepting the proposal. Here, however, the agency was unaware of the proposal until after the deadline. In the second case, Abt Assocs. Inc., B-226063, May 14, 1987, 87-1 CPD ¶ 513, the GAO determined a proposal should not have been rejected because the solicitation required filing the proposal at two locations, but the offeror timely filed at just one. The GAO held that the agency timely received a complete proposal by the deadline, therefore submission to the other location was a minor informality. Here, FB did not provide a proposal by the deadline.
Takeaways:
Submit proposals on time and to the right place, and if proposal submission instructions are vague or ambiguous, they should be clarified or challenged promptly. Offerors should be clear where, when, and how to submit their proposals well before they are due. The GAO will not widen the aperture for late submissions when it is clear adequate procedures have been provided to offerors. The instances in which the GAO has ruled proposals were unfairly discarded involve instances in which the agencies received—and knew they had received—proposals before the submission deadline. Finally, directions are important, even if the “just” appear in a letter instead of a formal amendment.
WHR Group, Inc.[3]
WHR Group involves a successful protest of an agency’s decision to stray from solicitation criteria in its technical evaluation and best-value tradeoff determination. The agency failed to follow the ratings scheme in the RFQ, mechanically relied on those unreasonable ratings, and essentially converted a best-value procurement into a lowest-price technically acceptable procurement.
WHR Group (“WHR”) was one of six vendors holding GSA multiple-award contracts that competed for a Department of Justice solicitation to provide relocation services to assist FBI employees. The RFQ provided that the award would be made on a best-value tradeoff basis, considering three factors: technical approach, past performance, and price. Technical approach was more important than past performance, which was, in turn, more important than price. Relevant here, the RFQ provided that strengths could be assigned if an aspect of the offer exceeded specified performance or capabilities in a way advantageous to the Government.
At the conclusion of the evaluation process, the source selection authority determined that, because there were “similarities between vendors for non-price factors,” award would be made to the three lowest-priced offers. WHR filed a protest at the GAO, contending (among other issues) that the agency unfairly evaluated its technical proposal and conducted a flawed best-value tradeoff that converted the best-value tradeoff into a lowest-priced technically acceptable procurement.
WHR contended that the agency unfairly evaluated its technical approach by irrationally assigning its quote an “acceptable” rating, rather than an “outstanding” rating, after assessing eight strengths and zero weaknesses to its quote. WHR’s technical proposal received eight strengths with no offsetting weaknesses and evaluators determined it showed a “clear understanding” of requirements, included “several capabilities that exceed” requirements, and posed only a “low to moderate” risk of unsuccessful performance. The RFQ defined an “acceptable” as “meet[ing] requirements and indicat[ing] [an] adequate approach and understanding of the requirements. Strengths and weaknesses are offsetting or will have little or no impact on contract performance. The risk of unsuccessful performance is low to moderate.” An outstanding technical approach, by contrast, would “exceed[] requirements and indicate[ an] exceptional approach and understanding of the requirements. Strengths far outweigh any weaknesses. Risk of unsuccessful performance is very low.” The GAO agreed with the protester, finding that the assigned adjectival rating was unreasonable and inconsistent with the RFQ.
The GAO also found that WHR was prejudiced by the agency’s best-value trade-off determination, which deviated from the RFQ’s evaluation scheme. By determining that all awards were essentially the same, the SSA improperly increased the relative importance of price and improperly decreased the importance of the technical approach and past performance factors. The SSA also failed to explain why it considered the offers substantively similar, noting one offer received an “outstanding” rating for technical approach. The GAO concluded that the SSA approached the best-value determination based on the assigned adjectival ratings and failed to “explain why . . . the additional benefits associated with WHR’s quotation was not worth the higher cost.” GAO found the agency’s best-value decision was “unreasonable, inconsistent, and prejudicial to WHR” because it conducted the best-value determination presuming there was little difference between the proposals. The agency also did not to articulate why the benefits in higher-rated proposals were not worth the higher cost.
Takeaways:
Although agencies are afforded considerable discretion in assigning evaluation ratings to offerors’ quotations, they are bound by the stated requirements and evaluation scheme provided in the RFQ. It is difficult to prevail on a claim the agency conferred an unfairly low rating; however, if there are clear, unexplained inconsistencies between solicitation criteria and the rating assigned, it can be grounds for the GAO to sustain a protest. The RFQ’s definition of an “acceptable” technical proposal provided that “[s]trengths and weaknesses are offsetting or will have little or no impact on contract performance[,]” while the “outstanding” rating was defined as a proposal in which “strengths far outweigh weaknesses.” Here, WHR received eight strengths and no offsetting weaknesses. Because this did not jibe with the RFQ criteria, and the agency provided no explanation for doing so, the GAO found the rating unreasonable. The larger error, however, was the agency’s overreliance on adjectival ratings. Instead of meaningfully evaluating the proposals, the agency simply looked at the ratings and determined they were all the same, without examining the merits of the competing proposals.
The GAO will also sustain a protest when an agency converts a best-value tradeoff into a lowest price technically acceptable procurement. Here, the agency cast aside the weights the RFQ assigned to the technical and past performance factors. In doing so, the agency improperly altered the importance of the factors.
[1] Citizen Contracting Grp., LLC, B-420810, 2022 WL 4181650 (Sept. 13, 2022).
[2] Framaco-Bozdemir JV, LLC, B-420708.2, 2022 WL 4017289 (Aug. 29, 2022).
[3] WHR Grp., Inc., B-420776, 2022 WL 4225383 (Aug. 30, 2022).