Protest challenging the agency’s evaluation of the awardee’s technical proposal is sustained, where the agency assessed strengths for features that were not included in the awardee’s proposal, but were known to evaluators due to the awardee’s performance on the incumbent contract. Because the agency cited these strengths as discriminators in the award decision, GAO concluded the protester was prejudiced by the error and that source selection decision was unreasonable.
Native Energy & Technology Inc. protested Customs and Border Protection’s award of a contract for maintenance and repair services to EMCOR Government Services, arguing that the agency unreasonably evaluated the offerors’ technical proposals, unreasonably evaluated the awardee’s past performance, and made an unreasonable award decision.
First, the protester argued the agency unreasonably assessed five strengths to EMCOR’s technical approach for features that were not found in the proposal and then cited these strengths as discriminators in the award decision. In response, the agency argued it was proper for the evaluators to rely on their own knowledge of the awardee’s performance to infer that EMCOR would perform on the new contract in the same manner and provide these features.
GAO agreed with the protester that three of the five strengths assigned by the agency were not supported by information in EMCOR’s technical proposal. For example, the TET assigned a strength for EMCOR’s proposal to provide a detailed monthly preventative maintenance schedule on a weekly basis. This strength also was cited as a discriminator in the award decision. However, the protester noted that the language used to describe this strength was essentially identical to the language used to describe this feature in EMCOR’s CPARs for the incumbent contract. More importantly, the protester noted that EMCOR’s proposal did not state the awardee would provide this forecast.
Therefore, the protester argued the agency improperly assigned a strength to EMCOR’s proposal based on its performance of the incumbent contract, rather than its proposal. The agency acknowledged that EMCOR’s proposal did not propose to provide a weekly preventative maintenance forecast, but argued that the TET knew the incumbent provided these reports. The agency argued the evaluators appropriately relied on their personal knowledge of EMCOR’s performance to assess this strength.
GAO disagreed. In the absence of any discussion of this matter in the awardee’s proposal, it was improper for the agency to assume that EMCOR would provide a weekly preventative maintenance forecast. Further, the RFP directed offerors to address such a forecast, which EMCOR failed to do, and therefore it was unreasonable for the agency to assume that this specific feature would be provided. Accordingly, GAO found the assignment of this strength improper.
GAO also found two additional strengths were improperly assessed, for the same reason. The TET assessed strengths for EMCOR’s proposal work control procedures for repairs and task orders, finding that all applicable documentation would be attached to each work order, as well as all applicable supporting permits, certifications, test results, and warranties. The protester argued—and GAO agreed—that the awardee’s proposal did not specifically state this documentation would be attached to every work order, but that the agency merely assumed it would be. Again, the agency tried to rely on its personal knowledge of the awardee’s work as the incumbent, but GAO found this unreasonable.
For the third strength, the agency assessed a strength to EMCOR’s proposal for its web-based tracking system/computer maintenance management system. NET argued the awardee’s proposal failed to include training on this system, as required by the RFP. The agency argued that the evaluators had personal knowledge of EMCOR’s ability to provide the training, but GAO was again unpersuaded. Not only did the proposal not warrant a strength in this area, GAO suggested it should have been assessed a weakness for failing to address the training requirement.
Because these unreasonable strengths were cited as discriminators in the award decision, GAO concluded the protester was prejudiced by the errors and sustained the protest on this basis.
Next, NET argued that CBP unreasonably evaluated its own proposal. However, GAO found the protester abandoned the challenges raised in its initial protest when it failed to respond to the agency report on these issues. Instead, the protester filed a supplemental protest in response to the agency report, which raised new challenges.
First, the protester argued the agency applied different definitions of a strength when evaluating the separate proposals. For example, the agency assessed strengths to EMCOR’s proposal for features that exceeded the PWS requirements and provided benefits to the agency, but did not find that the features would have “a positive impact on contract performance,” which was part of the definition of a strength in the source selection plan. The protester argued that this relaxed standard resulted in improperly assigned strengths for the awardee’s proposal; alternatively, the protester argued that application of the relaxed standard should have resulted in the assignment of strengths to its own proposal.
However, GAO noted the protester did not cite any examples of this alleged error. Further, GOA was not convinced that the “benefits” of a proposal feature differed substantially from a feature that would “have a positive impact on contract performance.”
GAO also found several of the protester’s supplemental protest grounds to be untimely. For example, in its supplemental protest, filed after the receipt of the agency report, NET argued for the first time that the agency treated the offerors unequally because the five strengths cited in the award decision as discriminators in favor of award to EMCOR were also present in NET’s proposal. GAO found the protester knew or should have known of these grounds when it was provided the award decision, and therefore this challenge was untimely.
Next, the protester argued the agency failed to consider negative performance information in EMCOR’s references, and that EMCOR’s proposal did not warrant the highest possible past performance rating. The protester noted that one CPARS report cited problems with turnaround time for minor repairs, cost control, maintenance of information in EMCOR’s systems, small business contracting, and quality control and deficiency reports. This report assigned a number of marginal ratings to various aspects of performance. Even if the agency considered the improved performance reflected in the more current CPARS report, the protester argued the agency merely forecasted future performance based on an expectation of continued improvement after award.
In response, the agency argued that it considered those performance issues, but found that EMCOR had improve the marginal ratings to very good ratings. The agency considered the problems, but also the contractor’s efforts to take corrective action and improve. GAO found this reasonable. To the extent the protester argued the agency “forecasted” continued improvement, GAO explained that forward-looking assumptions are the essence of a past performance evaluation, as contract references are an indication of the contractor’s future performance.
Finally, NET challenged the award decision itself, arguing that the contracting officer, acting as the SSA, improperly relied on the evaluators’ reports and award recommendation without exercising his independent judgment. NET also argued that because the underlying evaluation was flawed, the award decision was unreasonable.
GAO did not agree that the CO failed to exercise independent judgment. The agency acknowledged that the CO did not review the proposals or conduct an independent evaluation, but he did review the assessments and ratings, and performed an independent analysis of the information provided in the technical and price evaluation findings. GAO found this reasonable.
However, GAO agreed that the protester was prejudiced by the errors in the evaluation and sustained the challenge to the award decision. The agency concluded that EMCOR’s proposal warranted a price premium because it was higher rated and featured strengths the agency considered discriminators. However, given the errors in the technical evaluation, GAO found it reasonable to conclude that the agency might have made award to the protester, given its lower price and superior past performance.
Native Energy & Technology Inc. is represented by John C. Dulske and Bryan L. Kost of Dykema Cox Smith. EMCOR Government Services is represented by Kenneth B. Weckstein and Shlomo D. Katz of Brown Rudnick LLP. The government is represented by Kimberly L. Cohen, Department of Homeland Security. GAO attorneys Jonathan L. Kang and Laura Eyester participated in the preparation of the decision.
