Agency Not Obligated to Consider Close at Hand Information that Relates to Technical Requirements; Prudential Protective Services, LLC, GAO B-419005, B-419005.2


Protest challenging agency’s rejection of proposal as technically unacceptable is denied. The agency rejected the proposal because the protester did not include a project list for its proposal project manager as required by the solicitation. The protester alleged the project list was unnecessary because its proposed project manager had already served as project manager under the incumbent contract. Nevertheless, GAO found the project list was necessary for the agency to determine whether the proposed manager had the time to manage the scope of performance contemplated by the solicitation. Moreover, although the proposed project manager had worked under the incumbent contract, the agency was not obligated to consider that performance in evaluating the protester’s technical approach. While an agency may be obligated to consider close at hand information when evaluating past performance, it is not required to consider that information when evaluating a technical approach.

The General Services Administration, on behalf of the U.S. Marshals Service, issued a solicitation seeking detention officers. The solicitation required offerors to submit resumes for key personnel, including a project manager. The project manager’s resume had to also include an active project list. Failure to submit requested information for key personnel would result in a  technically unacceptable proposal.

Prudential Protective Services submitted a quote in response to the solicitation. Prudential proposed to use the incumbent contractor’s project manager. But Prudential did not include an active project list for the proposed manager.  GSA found Prudential’s proposal technically unacceptable. The agency awarded the contract to Starside Security & Investigation, Inc. Prudential protested.

Prudential argued that it was unreasonable for GSA to conclude, based on the lack of active project list, that it could not determine the project manager’s likelihood for successful performance. Prudential contended that the resume did not define an active project list, so the company reasonably believed that the project manager’s resume, which showed current work, fulfilled the requirement.

GSA, however, contended that the resume was not enough. It needed an active project list to know the number of projects the manager was actually managing. GSA acknowledged that Prudential had proposed the incumbent contractor, but the new solicitation more than doubled the estimate labor hours provided under the incumbent contract. GSA needed to know if the proposed project manager had the capacity to handle the work.

Prudential contended that GSA’s argument was a post-hoc rationalization, concocted in response to the protest. GAO disagreed. The record showed that the evaluators raised concern with the lack of project list during the evaluation.

Prudential also claimed that the solicitation was unclear about the necessity of a separate active project list, thus the requirement indicated a latent ambiguity. GAO didn’t buy it. The solicitation expressly required an active project list “in addition” to the project manager’s resume. Prudential’s interpretation unreasonably ignored the “in addition” language.

Prudential also claimed that GSA disparately evaluated proposals, because Starside, the awardee, proposed the same project manager. If Starside’s proposal was acceptable with that project manager, Prudential believed its own proposal should be acceptable.

GAO rejected this argument reasoning that if Prudential had been awarded the contract, the project list provided by Starside would be irrelevant because the project manager would be an employee of Prudential, and would no longer be managing the projects on any active list submitted by Starside. Thus, it was reasonable for the agency to find Prudential’s proposal unacceptable even though it submitted the same project manager as the awardee.

Finally, Prudential asserted that it was unreasonable for the agency to ignore its own direct knowledge of the proposed project manager, who had been performing under the incumbent contract. GAO, however, noted that while an agency may have an obligation to consider its own direct knowledge of a contractor’s past performance, it has not obligation to consider information about a contractor that relates to technical requirements.

Prudential is represented by Douglas L. Patin and Lisa A. Markman of Bradley, Arant, Boult, Cummings, LLP. The intervenor, Starside, is represented by H. Todd Whay of Baker, Cronogue, Tolle, and Werfel, LLP. The agency is represented by Any Cook of the General Services Administration. GAO attorneys Heather Self and Peter Tran participated in the preparation of the decision.

GAO - Prudential Protective Services