Protest challenging agency’s evaluation of awardee’s professional compensation plan is sustained. The protester alleged the agency failed to evaluate professional compensation plans in accordance with FAR 52.222-46. The agency argued this was an untimely challenge to the solicitation. The solicitation advised that the agency would not conduct a price realism analysis. Because FAR 52.222-46 requires the agency to evaluate price realism, the agency argued, the solicitation contained a patent ambiguity that the protester should have raised before the proposal deadline. GAO found that the agency was only half right. FAR 52.222-46 requires a price realism analysis. Any argument objecting to the failure to evaluate realism was untimely. But FAR 52.222-46 also requires the agency perform a separate non-realism evaluation of compensation plans. While the solicitation did not require the agency to evaluate realism, it had not absolved the agency of its duty to evaluate the non-realism aspects of the compensation plans.
The Air Force issued an RFP seeking metrology and technical writing services. The solicitation included FAR 52.222-46, which requires the government to evaluate an offeror's professional compensation plans to ensure that it reflects a sound management approach and understanding of the contract requirements. The solicitation also provided that the Air Force would not conduct a price realism analysis of any kind.
After receiving five proposals, the Air Force awarded the contract to AB International Services. An unsuccessful offeror, The Bionetics Corporation, protested the award.
Bionetics argued that the Air Force had failed to evaluate AB’s compensation plan in accordance with FAR 52.222-46. Bionetics contended that despite the language in the solicitation stating that the Air Force would conduct a realism analysis, the agency was required to evaluate professional compensation to determine whether AB’s proposal indicated a lack of understanding and to compare AB’s proposed compensation to the incumbent contractor’s. Bionetics alleged that the Air Force had done neither of these analyses.
GAO agreed that FAR 52.222-46 requires agencies to perform two types of analyses. First, the agency must consider the realism of the proposed professional compensation and its impact on recruiting and retention. Second, the provision requires agencies to compare the awardee’s proposed professional compensation to the incumbent contractor’s. If the agency determines that oan fferor proposes lower professional compensation than the incumbent, then the agency must further.
The Air Force did not contend to have performed either of these analyses. Rather, it simply argued that Bionetics’ protest was untimely. The Air Force reasoned that because the RFP contained FAR 52.222-46 while also advising that the agency would not evaluate price realism, the RFP was patently ambiguous. Bionetics therefore should have protested this patent ambiguity in the RFP before the proposal deadline.
GAO opined that the Air Force was only half right. FAR 52.222-46 explicitly requires the agency to evaluate realism. The RFP, however, provided that the agency would not evaluate realism. This was a patent ambiguity. Bionetics’ allegation that the Air Force should have evaluated realism was dismissed as untimely.
But as noted, FAR 52.222-46 also requires the agency to compare proposed professional compensation rates to the incumbent’s. There was nothing in the solicitation that created an ambiguity relative to this requirement. The language stating that the Air Force would not evaluate price realism did not absolve the agency of its obligation to perform the other analysis comparing rates. The Air Force failed to perform the non-realism analysis required by FAR 52.222-46.
GAO concluded that Bionetics had been prejudiced by the Air Force’s failure to perform the required analysis. Had the Air Force properly evaluated AB’s proposal, it may have found risk in AB’s approach, which would have resulted in Bionetics proposal being the best value.
Bionetics is represented by Anthony J. Mazzeo, Michael L. Sterling, and Daniel A.D. Salmon of Vandeventer Black LLP. The intervenor, AB International, is represented by John O’Brien, Daniel Strouse, and David Cohen of Cordatis Law LLP. The agency is represented by Colonel Patricia S. Wiegman-Lenz, Isabelle P. Cutting, Nicholas T. Iliff, and Thomas M. Powers of the Air Force. GAO attorneys Christopher Alwood and Christina Sklarew participated in the preparation of the decision.