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Published by General Counsel, P.C. Government Contracts Practice Group, the Bid Protest Weekly provides weekly summary of government contract bid protest decisions.  For additional information, contact Bill Welch at 703-556-0411 or wwwelch@generalcounsellaw.com.

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1. Hi-Tec Systems, Inc., B-402590; B-402590.2, June 7, 2010 

Link: GAO Opinion

Agency: Department of Homeland Security

Disposition: Protest denied.

Keywords: Proposal information

General Counsel P.C. Highlight: Offerors bear the burden of submitting an adequately written proposal and contracting agencies evaluating one section of a proposal are not required to go in search of additional information that an offeror has omitted or failed to adequately present.  

Hi-Tec Systems, Inc. protests the exclusion of its proposal from the competitive range under a Department of Homeland Security, Transportation Security Agency (TSA) request for proposals for test and evaluation services. Award was to be on a "best value" basis considering the following factors: technical approach, management approach, past performance, and price. The agency received three proposals. After the initial evaluation, TSA notified Hi-Tec that the technical evaluation team (TET) had determined that its proposal was outside the competitive range due to a rating of technically unacceptable for its technical approach. Hi-Tec challenges the elimination of its proposal from the competitive range.

The determination of whether a proposal is in the competitive range is principally a matter within the judgment of the procuring agency. GAO will review that judgment--and the evaluation judgments on which it was based--only to ensure that it was reasonable and in accord with the solicitation and applicable statutes and regulations.

Hi-Tec maintains that its technical approach unreasonably was downgraded with regard to four of the issues identified by the TET, asserting that the evaluation was based on the agency's "inattention to critical aspects of the company's proposal." Protest at 12. Hi-Tec asserts that the required information was included in its technical approach and, moreover, that the agency should have looked to other parts of its proposal, where it would have found information supporting a rating of at least good for its technical approach.

The GAO determined that these allegations were without merit. The GAO noted that the RFP required that proposals be submitted in four volumes, only one of which was to include the offeror's technical approach. In light of this clear delineation, GAO held that the agency was required to search the other volumes of Hi-Tec's proposal for information bearing on the identified weaknesses. In addition, GAO found that the additional information cited by Hi-Tec-both within and outside of its technical approach proposal--to be unconvincing. GAO denied the protest.

2. Falcon Environmental Services, Inc., B-402670, July 6, 2010 

Link: GAO Opinion

Agency: Department of the Air Force

Disposition: Protests denied.

Keywords: RFP Requirements

General Counsel P.C. Highlight: Where a dispute exists as to the actual meaning of a solicitation requirement, GAO resolves the issue by reading the solicitation as a whole. To be reasonable, an interpretation must be consistent with the solicitation when read as a whole and in a manner that gives effect to all provisions of the solicitation. 

Falcon Environmental Services, Inc. protests the award of a contract to Birdstrike Control Program, of Willis, Texas, under a request for proposals issued by the Department of the Air Force. The RFP was issued as a commercial item acquisition set aside for small business concerns. The solicitation sought proposals for wildlife control services at Joint Base McGuire-Dix-Lakehurst (JB MDL), New Jersey, to prevent animal-aircraft collisions.

Offerors were informed that the agency would more favorably rate past performance where the offeror used a number of the PWS wildlife control methods, as opposed to past performance using a single control method. The RFP stated that the contract would be awarded to the lowest-priced, responsible offeror whose past performance received a substantial confidence rating.

The Air Force received proposals from four offerors, including Birdstrike and Falcon. Falcon, the incumbent contractor, provided a detailed technical proposal that stated that falconry was its primary method of bird control, that firearms primarily would be used to aid in controlling gull and deer problems, and that firearms would be used only "if extreme control methods are warranted." Birdstrike did not submit a technical proposal but provided a descriptive "client guide," which generally described the firm's offered services. The client guide stated that Birdstrike used border collie dogs and falconry as its primary method of wildlife control, but that other methods were "employed as necessary, [including thermal imaging] systems, pyrotechnics, remote-control vehicles, traps, lasers, etc."

Birdstrike proposed a price of $934,920 and Falcon proposed $2,139,990. The contracting officer performed a competitive range determination and included only Falcon and Birdstrike in the competitive range. In discussions, the two firms were informed of their overall past performance ratings, asked to verify their prices, and invited to submit revised proposals. Neither firm submitted a revised price proposal.

Falcon contended that the RFP requires the use of depredation (killing of wildlife by firearms) as a wildlife control method and that Birdstrike will not satisfy this requirement because it does not provide depredation services. The GAO disagreed, finding that the solicitation, read as a whole, reasonably informed offerors that the contractor would be allowed to choose the appropriate method to control wildlife. According to the GAO, the record shows that the Air Force reasonably assigned overall substantial confidence ratings to both Birdstrike's and Falcon's past performance. The record also shows that, in accordance with the RFP, award was made to Birdstrike, as the firm submitting the lowest-priced proposal that had received a substantial confidence past performance rating. Protest is denied.

3. Jackson Contractor Group, Inc., B-402348.2, May 10, 2010 

Link: GAO Opinion

Agency: Department of the Air Force

Disposition: Protest denied.

Keywords: Corrective Action

General Counsel P.C. Highlight: Where the corrective action taken by an agency is otherwise unobjectionable, a request for revised price proposals is not improper merely because the awardee's price has been exposed. 

Jackson Contractor Group, Inc. protests the corrective action taken by the Department of the Air Force in response to a prior protest of an award to Jackson under a request for proposals (RFP) for the removal and replacement of the heating-ventilation-air conditioning system at the youth activity center building at Malmstrom Air Force Base, Montana. The Air Force submitted the RFP as a small business set aside and provided that the best value award decision would be based on the evaluation of past performance and price.

The Air Force received two proposals in response to the RFP: one from Jackson and one from James Talcott Construction. Talcott submitted the lowest-priced proposal and its past performance rating was "satisfactory confidence." Jackson's higher-priced proposal received a past performance rating of "significant confidence." The agency made award to Jackson, at which time it properly disclosed the award price. Talcott then protested the evaluation of its past performance and the award selection of Jackson.

In response to the protest, the Air Force determined that the original RFP and evaluation that were used to select the awardee were flawed, and that corrective action was required because clauses relevant to the past performance evaluation included in the solicitation were outdated and not in compliance with the current regulations. The Air Force amended the RFP to include these changes and requested final proposal revisions from the offerors, to include past performance information and price revisions. Jackson protested the corrective action, objecting that it was prejudiced by the corrective action because its price has been revealed and would provide Talcott with an unfair competitive advantage in the reopened competition.

GAO noted its long standing principle that, where the corrective action taken by an agency is otherwise unobjectionable, a request for revised price proposals is not improper merely because the awardee's price has been exposed. Jackson did not object to the merits of the corrective action, but argued that because offerors were informed of its price, rescinding the original award and reopening the competition would foster an auction and put Jackson at a competitive disadvantage. GAO held that the Federal Acquisition Regulation does not prohibit auctions, and agencies are not otherwise prohibited from taking corrective action in the form of requesting revised price proposals even where the original awardee's price has been disclosed. GAO has repeatedly noted that the possibility that the contract may not have been awarded based on a fair determination of the most advantageous proposal has a more harmful effect on the integrity of the competitive procurement system than does the possibility that the original awardee, whose price has been properly disclosed, will be at a disadvantage in the reopened competition.

4. PJ Helicopters, Inc., B-402524.2, May 20, 2010 

Link: GAO Opinion

Agency: Department of Agriculture, U.S. Forest Service

Disposition: Protest denied.

Keywords: Price Reasonableness

General Counsel P.C. Highlight: 
 

PJ Helicopters, Inc. protests the determination by the U.S. Forest Service, National Interagency Fire Center, to exclude its proposal from the competitive range under a request for proposals (RFP) for exclusive-use helicopter fire suppression services at various base locations. The solicitation, issued September 25, 2009, contemplated the award of one or more fixed-price contracts, with economic price adjustments, for a base year, with three 1-year options. Award was to be made to the offeror(s) whose proposal(s) were evaluated as the "best value" to the government considering price and several non-price evaluation factors.

PJ asserts that the agency improperly determined that its price was unreasonable, noting that the agency actually found higher prices for the same services be reasonable under previous solicitations at the same bases.

GAO noted that in evaluating price reasonableness, agencies may use a variety of techniques, including comparison of the proposed prices received in response to the solicitation, comparison of the proposed prices to prices previously paid for the item being acquired, comparison of the prices proposed with published commercial price lists and comparison of the prices received with an independent government estimate. The GAO determined that the price reasonableness determination here was unobjectionable. It noted that the agency used one of the acceptable evaluation methods specifically identified in the FAR--comparison of prices received--as the basis for its analysis. Moreover, the agency was aware of its previous determinations and concluded that the previous determinations involved different time and supply constraints. GAO also noted that each federal procurement is judged on its own merits and not in comparison to some previous procurement. GAO denied the protest.