Protest challenging the agency’s discussions as misleading is denied, where the protester’s response to a discussion question eliminated the identified deficiency but left intact a weakness; and protest challenging the technical evaluation is denied, where the record supports the agency’s determination that portions of the protester’s proposal that exceeded the solicitation requirements did not provide any benefit to the agency.
United Excel Corporation protested the U.S. Army Corps of Engineers’ award of a task order for the design, build, outfit, and transition of an ambulatory surgery and outpatient facility at the U.S. Air Force Academy to Gilbane Federal Joint Venture.
First, UEC argued that the agency misled UEC during discussions. In the initial evaluation, the agency assessed UEC with a deficiency because its proposed design lacked an internal corridor, which the solicitation required to connect the dental and surgery clinics and allow access to a sterilization room and staff facilities. The agency raised the deficiency during discussions. In its revised proposal, UEC added the required corridor, but did not provide access to the sterilization room or staff facilities from the corridor. The agency did not further raise the subject before closing discussions, and ultimately found the corridor’s lack of access to the sterilization room and staff facilities to be a weakness.
UEC argued that the agency was required to raise the issue again before closing discussions. The agency argued that a task order procurement under FAR Part 16 was not subject to the discussion requirements of FAR Part 15. Further, the agency asserted, even if it were subject to FAR Part 15, the agency was only required to alert UEC to deficiencies and significant weaknesses in its proposal, which it had done. The agency did not consider the corridor weakness to be significant.
GAO first noted that although task order procurements under FAR Part 16 are generally not subject to the discussion requirements of FAR Part 15, when the evaluation record expressly states that the agency conducted discussion in accordance with FAR Part 15, the agency must adhere to those regulations as if they were controlling. However, GAO found that the agency reasonably alerted UEC to the initial deficiency and was not required to revisit the issue when UEC’s partial remedy reduced the agency’s concern to a weakness. The agency was not required to continue discussions with UEC until its proposal was perfect, and eliminating the deficiency was sufficient to meet the discussion requirements. GAO denied this basis of protest.
UEC also argued that it should have been assigned more strengths where its proposal exceeded the solicitation requirements. Specifically, UEC asserted that it was entitled to extra credit for proposing materials that exceeded the requirements, and for proposing personnel whose experience exceeded the minimum requirements. The agency argued that in both cases, while UEC’s proposal exceeded the requirements, the additions did not offer any additional value.
GAO agreed with the agency, finding that the record supported the agency’s contention that the proposed materials exceeding the solicitation requirements did not provide any discernible value to the government. Regarding personnel, GAO found that although UEC’s personnel technically exceeded the minimum qualifications, their additional qualifications were not especially relevant. In contrast, where Gilbane received strengths for personnel with extra qualifications, it was because their experience was directly relevant to the procurement. In one example, GAO noted that Gilbane’s commissioning specialist had 27 years of directly relevant experience, whereas UEC’s proposed commissioning specialist, although exceeding the requirements, did not have such directly relevant experience. GAO denied this basis of protest.
Finally, UEC challenged the agency’s best value decision, asserting that the contracting officer failed to consider price in selecting Gilbane’s higher-priced proposal for award. GAO noted that although the contracting officer’s source selection decision did not specifically repeat the discussion of all the price differences, the underlying evaluation showed that the contracting officer adequately reviewed the benefits of each proposal and the price differences between the two. GAO denied this basis of protest, as well.
GAO also dismissed as an untimely piecemeal protest submission UEC’s challenge to the agency’s failure to award UEC strengths for its proposed phasing and sequencing of the work. UEC’s initial proposal stated only that UEC should have received a higher adjectival rating for that factor, but did not challenge any of the assessed strengths; its claim that it was entitled to additional strengths came only in its supplemental protest filed with it comments on the agency report. However, GAO found that UEC received a debriefing identifying all evaluated strengths and weaknesses regarding phasing and sequencing before filing its first protest. As a result, GAO dismissed UEC’s supplemental protest as untimely.
United Excel Corporation is represented by Reginald M. Jones, Nicholas T. Solosky, and Rachel M. Severance of Fox Rothschild LLP. Gilbane Federal Joint Venture is represented by Douglas L. Patin, Aron C. Beezley, and Lisa A. Markman of Bradley Arant Boult Cummings LLP. The government is represented by S. DeAnn Lehigh and Michael T. Geiselhart of the Department of the Army. GAO attorneys Paul N. Wengert and Tania Calhoun participated in the preparation of the decision.
