By: Eric Whytsell
Given the broad discretion granted agencies in connection with their award decisions, the likelihood of a successful protest sometimes seems unreasonably low. However, in McGoldrick Construction Services Corporation, B-409252.2 (Comp. Gen. March 28, 2014), the Government Accountability Office (GAO) reminds us that protests can still be won – if you can show the agency made the right kind of mistake.
McGoldrick involved an Army Corps of Engineers (Corps) procurement seeking design-build firms for construction and maintenance at Fort Hood in Texas. The request for proposals (RFP) anticipated the award of between two and ten fixed-price, multiple-award indefinite-delivery, indefinite-quantity task-order contracts (MATOCs), for one base year and two option years. The Corps conducted the procurement pursuant to FAR 36.3 two-phase design-build procedures, with the Phase 1 evaluation of proposals leading to the selection of up to ten offerors for evaluation in Phase 2. Under the RFP, the Phase 2 award was to be made on a best-value basis based on the Phase 1 factors, plus design technical, summary schedule and price, with non-price factors significantly more important than price.
After the initial Phase 1 evaluation resulted in its not being selected for consideration in Phase 2, McGoldrick filed a protest that led to corrective action. The Corps’ resulting reevaluation of McGoldrick’s proposal left it with seven strengths, two weaknesses, one significant weakness, and a Phase 1 adjectival rating under the organization and technical approach factor of acceptable (rather than marginal).
After a written debriefing, McGoldrick protested again, arguing (among other things) that the Corps had unreasonably concluded that it did not demonstrate a capacity to take on new task orders based on the agency’s evaluation of the protester’s quality control (QC) managers. On this point, McGoldrick essentially argued that the agency applied an unstated evaluation criterion in its technical evaluation by applying a stricter standard than required by the solicitation.
The relevant portion of the RFP required that offerors describe their resources and capabilities “to manage and execute several concurrent Task Orders,” and explained that the agency would evaluate an offeror’s “capacity to successfully accomplish the task orders throughout the Southwestern Division and surrounding areas along with other ongoing work, and multiple task orders, all in a timely manner.”
Despite McGoldrick’s discussion of its various staff members already working at Fort Hood, including a number of quality control (QC) managers and superintendents, the Corps determined that McGoldrick “has not shown they can address executing several concurrent task orders” and assessed a significant weakness. The evaluators explained the rationale for their position by reviewing the timing of ongoing task orders worked by McGoldrick’s QC personnel and concluding that there were certain time periods in which, contrary to RFP requirements, McGoldrick could not take on new task orders because “[a] QC employed by the Prime must be present on a jobsite during construction or work may not be performed.
The GAO found the agency’s evaluation and assessment of a significant weakness unreasonable for three reasons: First, the Corps’ rationale is inconsistent with the solicitation’s actual terms, which provided that “either the QC System Manager, or his designated representative for the task order site, must be on site at all times during construction.” Second, the QC requirements were part of the RFP’s quality control plan, but offerors were not required to submit such a plan – or assign QC staff – until after award, so that finding McGoldrick unable to perform was premature. Finally, the agency’s assumptions regarding the timing of McGoldrick’s projects and availability of its staff were unreasonable because the RFP did not require offerors to demonstrate an ability to perform multiple task orders by a set cut-off date or provided that offers would be evaluated on such a basis during Phase 1.
Thus, the GAO held the Corps’ evaluation of a significant weakness was not in accordance with the RFPs stated evaluation scheme and sustained the protest. It went on to conclude, based on a review of the record, that there is a reasonable possibility that removing the significant weakness could cause McGoldrick’s rating to rise to “good,” which would allow McGoldrick’s proposal to move to Phase 2 evaluation. As a result, the GAO recommended that the Corps reevaluate McGoldrick’s proposal in a manner consistent with the RFP and make a new determination regarding advancement of the proposal to Phase 2.
What’s the take-away? If you are looking for viable protest grounds, scrutinize the agency’s action to determine whether it is inconsistent with the RFP’s stated evaluation criteria or procedures in any way. If you can show inconsistency, you can win (and prejudice), you can win.
J. Eric Whytsell is the attorney responsible for the content of this article.
© Jackson Kelly PLLC 2014