A recent article addressed the dangers of “aspirational analysis”, the dynamic in which offerors interpret a solicitation as saying what they want it to say rather than recognizing what it actually requires. A slightly different version of the problem is highlighted by the decision in Aerostar Perma-Fix TRU Services, LLC, B-411733; B-411733.4 (October 8, 2015), where the protester apparently failed to consider all of the relevant proposal instructions and then attempted to protest based solely on other, more helpful language. However, this “aspirational” approach is no less problematic in the context of proposal instructions than in connection with solicitation requirements. And protests are no more likely to succeed.
The protest in question was filed by Aerostar Perma-Fix TRU Services, LLC (APT) challenging a Department of Energy (DOE) award. Under the request for proposals (RFP), the award was to be made on a best-value basis considering five evaluation factors: (1) past performance; (2) technical understanding and approach; (3) key personnel and management plan; (4) relevant experience; and (5) cost/price. When the source selection official (SSO) found North Wind’s proposal to be superior to APT’s under each of the non-cost/price factors, APT protested, challenging every weakness assigned to its own proposal, as well as the agency’s selection decision, which it contends was based on a flawed evaluation.
One of the weaknesses assigned to APT resulted from its failure to understand and meet the proposal instructions relating to the relevant experience factor. The RFP required the submission of past performance and relevant experience reference information using a specific form (Form L-3, Past Performance and Relevant Experience Reference Information Form) that identified relevant previously performed contracts. The SSO assigned APT a significant weakness under the relevant experience factor for failing to comply with the solicitation requirement that each entity comprising the teaming arrangement (here, the two joint venturers) submit a Form L-3. Aerostar, the lead partner in the joint venture and the entity proposed to perform the highest percentage of the overall effort, did not submit any Form L-3s identifying relevant contracts or projects. The evaluators believed that this appreciably increased the risk of unsuccessful contract performance. The SSO agreed, finding that Aerostar had failed to demonstrate relevant experience in several key areas.
APT argued that the assignment of a significant weakness for its relevant experience was unreasonable because the RFP did not require each entity comprising the teaming arrangement or joint venture to submit a Form L-3. Instead, according to APT, the solicitation limited the joint venture to three past performance references total. APT based its understanding – and argument – on the RFP language providing that “[p]ast performance information is limited to the three (3) most relevant contracts or projects for the Prime Offeror (inclusive of any teaming entities) and the two (2) most relevant contracts or projects for each significant subcontractor.” However, as the Government Accountability Office (GAO) pointed out, the RFP went on to explain (on the same page) that each offeror, “including each entity comprising the teaming arrangement”, was to submit a Form L-3 for three (3) contracts or projects” -- and that each significant subcontractor was required to submit a Form L-3 for two contracts or projects.
According to the GAO, this additional RFP language – apparently ignored by APT -- clarified any uncertainty regarding whether the limit of three references applied to each member of a joint venture or to the joint venture as a whole. The GAO also noted that, to the extent any ambiguity could be said to remain, it was a patent ambiguity that APT was required to challenge prior to submission of solicitation responses, as the GAO does not consider subsequent untimely arguments asserting the protester’s own interpretation of ambiguous RFP provisions. In other words, APT lost on the relevant experience protest ground because either: (i) it ignored, misunderstood, and/or failed to comply with a proposal instruction clearly set forth in the RFP; or (ii) it failed to timely challenge a patent ambiguity in the solicitation.
Either way, more careful attention to what the RFP actually said could have saved APT much time, effort, and treasure. Offerors must work hard to understand and comply with all the solicitation language and do whatever possible to resolve potential ambiguities based on that language. If the issues cannot be completely clarified prior to the time set for submission of proposals, a pre-award protest should be considered. As this case again reminds us, waiting for an adverse award decision and filing a protest to challenge the agency’s interpretation of its own RFP is a profoundly unsound strategy.
Eric Whytsell is responsible for the contents of this Article.
© Jackson Kelly PLLC 2015