Protest challenging the agency’s exclusion of a proposal from the competitive range is denied, where the protester failed to submit a well-written proposal that provided the level of detail of corporate experience, project management, and safety required by the solicitation. The court also held the agency appropriately considered price when making its competitive range determination, and was not required to conduct a full-on best value tradeoff at that stage of the procurement. The court explained that it was reasonable for the agency to include higher-priced proposals in the competitive range, given the protester’s poor technical ratings and the agency’s intention to engage in both discussions and price negotiations.
Veterans Electric LLC challenged the Department of Veterans Affairs’ exclusion of its proposal from the competitive range for a contract for construction services. The parties filed cross-motions for judgment on the administrative record.
The source selection evaluation board gave Veterans Electric’s company experience and project management “marginal” ratings and determined its safety plan to be “unsatisfactory.” The proposal was therefore excluded from the competitive range, because it was not among the most highly rated.
The protester challenged multiple aspects of the evaluation. First, Veterans Electric challenged the marginal rating assigned to its company experience. In response, the agency explained that the protester’s proposal simply listed “satisfied customers” without any additional information from which to discern the nature of the projects or the extent of work performed. This list did not provide the required level of detail and made it difficult for the agency to properly evaluate the breadth and depth of the company’s experience. The court found this reasonable.
Next, the protester challenged the marginal rating under the project management section of its proposal. In response, the agency explained that Veterans Electric provided a list of its management team members with an accompanying list of these individuals’ prior jobs, notable projects, and skills, but again did not provide the detailed information requested in the solicitation. For example, each employee’s overview showed job titles and durations but not places of employment. The lists identified each individual’s “notable projects” but did not indicate the kind of projects, the work performed on each project, or these projects’ relationship to the present contract. Again, the court found the agency’s evaluation and ratings reasonable.
Next, Veterans Electric challenged the unsatisfactory rating assigned to its safety plan. In its plan, Veterans Electric provided a general workplace safety overview and basic first aid, but failed to address work activity safety measures, safety reporting, training requirements, or training monitoring and enforcement, as the solicitation requested. Again, the court attributed the poor rating to the protester’s poorly written proposal.
Veterans Electric attributed the shortcomings in its safety plan to ambiguity in the solicitation. Further, the protester argued that its full 200-page safety plan could not fit within the proposal’s 25-page limit. First, the court held that the time to challenge an ambiguity in the solicitation had long passed. Second, the court noted that after accounting for a considerable amount of unused space on each page and removing pages which did not count towards the cap, Veterans Electric’s technical factor proposal is approximately 10 pages long. Therefore, the court found no reason the protester could not have provided more detail in this portion of its proposal.
Next, the protester argued the agency used unstated evaluation criteria. The agency found that Veterans Electric failed to include information on its “Project Manager’s and Site Superintendent’s ability to coordinate multiple contract tasks” and further, that “no durations, magnitude, descriptions, or scope of the projects were provided.” The protester argued these factors were not listed in the solicitation. However, the court disagreed, finding that the solicitation plainly provides that the “evaluation of the Project Manager and Site Superintendent will include the ability to coordinate multiple contract tasks,” and that the agency planned to evaluate the “breadth and depth” of each offeror’s experience. The court found “breadth and depth” to be sufficiently similar to “magnitude and scope” for the purposes of the evaluation.
The court rejected the protester’s other allegations of undisclosed evaluation criteria, finding they generally arose from the protester’s failure to include detailed information in its proposal.
The protester also challenged the agency’s use of the term “weakness” in the evaluation, arguing that the agency’s use of the term did not jibe with the definition in the solicitation. The solicitation defines a weakness “as a flaw in the proposal that increases the risk of unsuccessful contract performance,” and defined a significant weakness “as a flaw in the proposal that appreciably increases the risk of unsuccessful contract performance.” However, the court held that the protester’s vague and poorly written proposal did not provide the agency assurance that it could meet the requirements, and therefore these aspects of the proposal, in fact, increased the risk of unsuccessful performance in comparison to the other offerors.
The court also found that VA did not arbitrarily exclude Veterans Electric from the competitive range, but reasonably evaluated proposals in accordance with the solicitation, which defined the relative weight of the factors. The court also agreed that Veterans Electric submitted a comparably inferior proposal, noting that the protester’s technical proposal received the lowest ratings given to any submission across all technical factors. Including price and past performance, the agency found Veterans Electric submitted the tenth best proposal of the twelve considered, making it unsurprising that it was excluded from the competitive range.
To the extent the protester argued the information the agency sought could have been gleaned from other areas of its proposal, the court held that VA was not obligated to cobble together a compliant offer from various areas of the proposal. Further, any disparities among the evaluations were based on differences in the content of the offerors’ proposals.
Finally, Veterans Electric argued that VA (1) did not appropriately factor in that price into Veterans Electric’s overall evaluation and (2) failed to perform a proper best-value tradeoff to justify including offerors with higher prices than Veterans Electric in the competitive range. First, the court noted the protester erroneously conflated a competitive range determination with an award decision. The agency was not required to perform a best-value analysis at the stage of the procurement where it established the competitive range. At that stage, VA needed only to identify the most highly-rated proposals, which it did. Further, the solicitation contemplated discussions, including price negotiations, with offerors in the competitive range. Therefore, the inclusion of higher-priced proposals in the competitive range was not arbitrary.
The court also noted that VA did evaluate price, as it considered each proposal’s price realism and reasonableness. At this stage, VA was not required to engage in the same price and value tradeoff analysis required to support an award decision. Accordingly, the court held that VA sufficiently accounted for each offeror’s price in making its overall assessment of which offers were most competitive.
Veterans Electric LLC is represented by Andrew R. Newell of Whitcomb, Selinsky, McAuliffe P.C. The government is represented by Christopher L. Harlow, Trial Attorney, with whom were Joseph P. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, and Brian R. Reed, Procurement Counsel, Office of General Counsel, Department of Veterans Affairs.
