Link:  http://www.generalcounsellaw.com/CM/Custom/Custom62.asp

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.

Click to subscribe now, free.

Bid Protest Weekly - June 4, 2010

---

1. Freedom Scientific, Inc., B-401173.3, May 4, 2010 

Link: GAO Opinion

Agency: Department of Veterans Affairs

Disposition: Protest denied.

Keywords: Compliance with laws; contract administration

General Counsel P.C. Highlight: General solicitation provisions requiring the contractor to comply with the requirements of federal, state, and local laws, codes and regulations do not require that an offeror demonstrate compliance prior to award. Whether the products comply or not is a matter of contract administration.  

The Department of Veterans Affairs (VA) issued a request for proposals (RFP) for closed-circuit electronic magnification devices (CCTVs) as a small business set-aside. The contract was to be a fixed-price requirements contract for a base year, with four one-year options. Freedom Scientific, Inc. (Freedom) protests the award of the contract to Enhanced Vision Systems, Inc. (Enhanced) based on the assertions that Enhanced did not meet technical requirements of the solicitation and that the products offered by Enhanced were not compliant with applicable Federal Communication Commission (FCC) regulations.

The solicitation stated that award would be made to the offeror whose proposal was considered "best value" based on numerous criteria, including certain technical factors such as picture quality and machine controls. The solicitation also required compliance with federal, state, and local laws.

Although the contracting officer determined that Enhanced's proposal offered the best value, Freedom contends that Enhanced's monitors did not meet the technical requirements because they lacked the required auto focus on/off feature. GAO reviews the record to determine whether the agency's judgments were reasonable and consistent with stated evaluation criteria. In this case, the record showed Enhanced's proposal included products that "generally meet and exceed the requirements" and the auto focus switch was easily accessible, provided rapid response, and responded instantly and quietly. GAO determined that the agency reasonably determined that the Enhanced products met the technical requirements.

As to Freedom's assertion that Enhanced's products did not comply with FCC requirements, and thus do not comply with federal, state, and local laws, GAO found that the solicitation clause regarding compliance was under the heading "Section C - Contract Clauses" and applied to the contractor. The RFP did not expressly require that offered products comply with FCC requirements as a precondition to award. Therefore, the protest was denied.

2. Resource Title Agency, Inc., B-402484.2, May 18, 2010 

Link: GAO Opinion

Agency: Department of Housing and Urban Development

Disposition: Protest denied.

Keywords: Proposal Detail

General Counsel P.C. Highlight: Since an agency's evaluation is dependent on the information furnished in a proposal, it is the offeror's responsibility to submit an adequately written proposal for the agency to evaluate.  

In a request for proposals (RFP), the Department of Housing and Urban Development (HUD) sought services for a base period of one year and three one-year options for real estate property sales closing services. Award would be made based on "best value" and best value was to be determined by evaluating technical and management approach, same or similar experience, past performance, and price. The non-price factors were considered more important than price when combined.

Upon being notified that it was not selected, Resource Title Agency, Inc. (Resource) requested a debriefing. Resource filed a protest after receiving the debriefing and objected to the evaluation of proposals. Specifically, Resource's proposal received a technically unacceptable rating and was notified that its proposal contained many weaknesses.

GAO stated that the evaluation of proposals is a matter within the discretion of the procuring agency, since the agency is responsible for defining its needs and deciding on the best methods of accommodating them. GAO will only question an agency's technical evaluation where the record shows that the evaluation does not have a reasonable basis or is inconsistent with the RFP.

GAO examined the record and determined that the RFP required offerors to furnish specifics with regard to their plan of operations, oversight and quality control, and key personnel. Resource's proposal was considered weak where it failed to provide a detailed discussion of its customer service goals and processes and where it failed to explain how increases in the volume of closings would be addressed.

In GAO's review of the record, it stated that Resource's explanation that it provided a detailed description of its customer service goals and processes by summarizing tasks that it will perform under the contract is unpersuasive where the agency was clearly asking for information regarding customer service goals and processes. It was, therefore, reasonable to conclude that Resource did not adequately address this requirement.

GAO also stated that Resource failed to describe the methodology for determining staffing levels, which Resource did not challenge. As to the arguments that Resource did not provide information on its intended software applications, failed to furnish a statement as to whether or not any key personnel were committed to another contract, and that Resource failed to make clear the monthly volume of residential closings performed, GAO stated that it was Resource's responsibility to furnish these details in its proposal, which it failed to do. GAO denied the protest since it was not persuaded that the findings of weakness and the rating of poor under the technical/management approach factor lacked a reasonable basis.

3. CESC Skyline, LLC, B-402520; B-402520.2, May 3, 2010 

Link: GAO Opinion

Agency: General Services Administration

Disposition: Protest denied.

Keywords: Overly restrictive requirements

General Counsel P.C. Highlight: Where a protester challenges an RFP requirement as unduly restrictive of competition, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. GAO determines whether is justified in imposing the requirement by testing whether the agency's explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. 

CESC Skyline, LLC (CESC) protests the terms of a solicitation for offers (SFO), issued by the General Services Administration (GSA), seeking office and related space in Northern Virginia to house the Department of Defense (DOD) Medical Command Headquarters.

Based on DOD's request for space, pursuant to a 2005 BRAC reorganization, GSA prepared a housing plan and prospectus, which was approved by Congress. GSA then issued the SFO, which provided for leasing 750,791 rentable square feet (rsf) in two phases. Phase I provided for moving all covered personnel by the September 15, 2011 deadline. The SFO required that 600,000 rsf be ready no later than June 1, 2011. Phase II provided for moving other non-BRAC related personnel and space not essential for BRAC operations. The remainder of the 750,791 rsf had to be ready for the government move no later than June 1, 2012.

CESC argues that the occupancy dates in the SFO are "extremely accelerated," unduly restrictive of competition, and therefore in violation of the Competition in Contracting Act. GAO states that a contracting agency has the discretion to determine its needs and the best method to accommodate them. When preparing a solicitation, an agency may include restrictive requirements only to the extent they are necessary to satisfy the agency's legitimate needs.

GAO concludes that the SFO's accelerated occupancy schedule represents and legitimate agency requirement. First, CESC's arguments that GSA and DOD have both recognized that the BRAC deadlines can be extended are flawed since the deadlines are statutory and the requirements of the SFO are designed to meet BRAC relocation requirements by the set deadlines. Second, CESC's assertion that, to the extent the BRAC deadline is a legitimate requirement, it results in a de facto sole-source procurement, GAO concludes that the contention is without a factual basis where the record reflects that GSA identified viable properties, the contracting officer expected to receive a number of viable offers, and both offerors have affirmed that they can meet the required occupancy dates. GAO denied the protest.

4. Ewing Construction Co., Inc., B-401887.3; B-401887.4, April 26, 2010 

Link: GAO Opinion

Agency: Department of the Navy

Disposition: Protest sustained.

Keywords: Discussions

General Counsel P.C. Highlight: Where an agency, during a reevaluation of proposals, identifies new concerns in a proposal and those concerns would have had to be raised had they been identified before discussions were held, the agency is required to reopen discussions and raise the new concerns with the offeror. 

The Department of the Navy (Navy) issued a request for proposals (RFP) for the design and construction of a rotor blade processing facility. Ewing Construction Co., Inc. (Ewing) was an unsuccessful bidder and argues that the Navy failed to conduct meaningful discussions and failed to reasonably evaluate proposals.

The RFP provided for the award of a fixed-price contract for the design and construction of an addition to an existing building. Procurement was to be conducted in two phases. In phase I, the agency would evaluate proposals under evaluation factors, including past performance and corporate experience. The offerors that were invited to participate in phase II were required to submit technical and price proposals. The solicitation stated that discussions may be held and it required that if a deficiency was found in a proposal, the offeror would be considered ineligible unless the deficiency was corrected through discussions.

Ewing succeeded to phase I, but was then, during discussions in the phase II evaluation, notified that its phase II proposal contained significant weaknesses under the technical solution factor where Ewing's "proposed roofing system does not meet the requirements of the RFP." In response to discussions, Ewing submitted a final revised proposal, including responses to the discussion questions posed by the Navy, explaining why it believed its proposed roof design would meet agency requirements. When Ewing lost the award in 2009, Ewing protested. In response to the protest, the agency took corrective action by reevaluating Ewing's proposal, but did not reopen discussions. On re-evaluation, the Agency found Ewing's roof design to be a deficiency and thus ineligible for award. It chose not to reopen discussions and affirmed its prior award.

GAO states that, where an agency, during a corrective action reevaluation of proposals, identifies new concerns in a proposal and those concerns would have had to be raised had they been identified before discussions were held, the agency is requires to reopen discussions and raise concerns with the offeror. Here, before taking corrective action, the agency raised concerns regarding the roofing system, but during the reevaluation, the agency never reopened discussions with Ewing after it received another deficient rating for its proposal.

GAO concludes that since the agency's concerns with Ewing's proposed approach changed during reevaluation to the point that, should they remain unaddressed, the proposal would be reflected as ineligible for award, the agency was required to reopen discussions. GAO sustained the protest and recommended that the agency reopen discussions, request new final proposal revisions, and make a new source selection decision.