After an unsuccessful bid, disappointed bidders sometimes present hyper-technical protests in a passionate, yet misplaced, attempt to protect their economic interests. Many of these protests ignore the wide discretion GAO gives to agencies in their evaluation pf proposals, and ultimate selection of an awardee. Bidders on Architecture and Engineering (A&E) contracts must be particularly aware that GAO will not substitute its own judgement for that of the agency, and offerors must be ready to proactively read between the lines of an agency’s request for proposals.
The selection process for A&E services is distinct from that used in most government contract decisions -- where all factors, including price, are evaluated simultaneously. The A&E process, governed by the 1972 Brooks Act (40 U.S.C. §§1101-1104), establishes that a soliciting agency must first evaluate offerors’ qualification and supplemental statements without regard to price, and select the top 3 (or, if it deems appropriate, more) firms based on their competence and evaluated ability to perform the requested service according to the agency’s stated criteria. Once the most highly qualified offers are identified, the procuring agency begins negotiations. The agency starts with the offeror ranked most capable, and if the parties can reach a fair and reasonable price, the agency awards to that contractor; otherwise, negotiations continue with the next-highest ranked offeror until a contract can be awarded.
A soliciting agency has discretion to look beyond the stated evaluation criteria, as AMEL Technologies Inc. learned in a recent Government Accountability Office (GAO) decision. The procurement in question was conducted by the Department of the Navy, pursuant to the Brooks Act, and invited firms to complete an A&E Qualification Statement to provide design and engineering services for various mechanical and fire protection projects. Qualification statements were evaluated based on eight selection criteria, in order of importance: (1) professional qualifications of firm and staff; (2) specialized recent experience and technical competence of firm or particular staff members; (3) past performance; (4) capacity to accomplish the work in the required time; (5) knowledge and demonstrated experience; (6) firm’s quality control program experience; (7) location of the firm in the general geographical area; and (8) volume of work previously awarded to the firm. The solicitation instructed offerors to address each of the eight criteria in their qualification statements.
After being notified it had not been determined one of the most qualified firms and was therefore not in the running to engage in contract negotiations with the Navy, AMEL Technologies filed an initial protest. In response, the agency decided to take corrective action by reconvening its selection board to reevaluate all qualification statements and GAO dismissed the protest as academic. The Navy’s reevaluation resulted in the selection board again determining that AMEL was not among the three most qualified firms. Specifically, the Board found that AMEL’s qualification statement fell short in professional qualifications (criterion 1); specialized recent experience and technical competence (criterion 2); and capacity to accomplish work in the required time (criterion 4). AMEL protested again, challenging the evaluation as being flawed and inconsistent with the selection criteria.
More particularly, AMEL asserted that the selection board acted improperly by (i) failing to make clear that the agency would evaluate the years of experience of only a few key prime contractor personnel; and (ii) downgrading AMEL for failing to propose a licensed fire protection engineer. Since the solicitation did not explicitly require a prime contract awardee itself to have a fire protection engineer on staff, AMEL had instead proposed to rely on its subcontractor’s experience. GAO held, however, that the significance of an awardee’s experience, and the weight to be assigned to team members’ experience, are matters squarely within the Agency’s discretion and found that the Navy’s determination was reasonable and in accordance with the stated selection criteria.
According to GAO, the first evaluation criteria, “professional qualifications of firm and staff”, was sufficient to have put AMEL on notice that the experience of its personnel would be assessed – and should have informed AMEL of the relative importance of experience, as well as the weight assigned to the experience -- or the lack thereof -- of team members and subcontractors. Given the wide discretion afforded a soliciting agency, firms submitting A&E evaluation statements should have understood the potential that the agency might not be bound by the express requirements identified in the evaluation criteria. This truism extends to other competitive procurements, as well: provided that the Agency has exercised reasonable judgment, and conducted an evaluation that is consistent with the stated evaluation criteria, GAO will not substitute its own judgment for that of the Agency. It is critical for an offeror in any procurement to artfully craft its submission—be it a proposal, capabilities statement, or quotation—in a way that reflects the nature, purpose, and other relevant portions of the solicitation in order to ensure that it is competitive. In some cases, this requires reading between the lines, anticipating potential Agency concerns, and/or pre-emptively addressing what might otherwise be considered an offeror’s weakness in order to make the best case to the agency.
As explained by GAO, a solicitation need not identify every possible consideration, or the weight assigned to each, under all stated evaluation criteria, provided that all matters the Agency considered were reasonably related to, or encompassed by, the stated criteria. Offerors need to keep this in mind and prepare their proposals and other submissions in a way that mindfully addresses all reasonably related considerations. It’s certainly better to identify potential considerations and deal with them proactively than to find yourself arguing in vain to GAO that the agency improperly considered an issue you failed to address.
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