Agency Not Required to Include an “End-User” of Solicited Services on Evaluation Team; DURO Health, LLC, GAO B-418582


Protest challenging the award of a contract for pre-habilitation services is denied. The protester argued that the evaluation was flawed because it did not include an end-user of the pre-habilitation services on the evaluation team. GAO dismissed this argument, noting that the makeup of an evaluation is within the agency’s broad discretion. The protester also argued that the agency wrongly valued a rehabilitative rather than a pre-habilitative approach required by the solicitation. GAO, however, found no evidence to support this argument. The protester further argued that the agency did not understand its proposal, but GAO found this was the protester’s own fault.

The Air Force issued a n RFP seeking pre-habilitation services to increase the physical capacity of its fighter aircrew and decrease the crew’s rate of injuries. Ten offerors, including DURO Health, submitted proposals. The Air Force did not select DURO for award. DURO protested.

DURO first contended that the Air Force’s technical evaluation was flawed because the agency failed to include an end-user (presumably a member of the fighter crew) in the evaluation process. GAO reasoned that this argument was a challenge to the composition of the technical evaluation panel. GAO will not object to the makeup of a panel in the absence of fraud, bad faith, or conflict of interest. There was no evidence that the Air Force’s decision to not include an end-user was motivated by a malicious intent to harm the protester.

Next, DURO claimed that the Air Force improperly evaluated the company’s approach by favoring a rehabilitative approach rather than a pre-habilitative approach. But the solicitation specifically stated that the objective of the procurement was pre-habilitation. DURO had presented no evidence that the agency failed to adhere to the solicitation’s terms.

Finally, DURO complained that the Air Force did not understand its proposal. The solicitation expressly instructed offerors to assume the agency had no knowledge of the of each offeror’s capabilities. The burden therefore rested with DURO to ensure that it properly explained all aspects of its proposal.

DURO is represented by Randy Ziobro. The intervenor, LMR Technology Group, is represented by J. Bradley Reaves and Beth V. McMahon of Reaves Coley, PLLC. The agency is represented by Patricia S. Wiegman-Lenz, Lawrence Anderson, Beatrice K. Foster, Kevin P. Stiens and Cherrone R. Wilson of the Air Force. GAO attorneys Jacob M. Talcott and Jennifer D. Westfall-McGrail participated in the preparation of the decision.

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