Protest challenging the agency’s evaluation of proposals, investigation of an OCI, and best value tradeoff is denied. The protester alleged the agency applied unstated criteria. But the agency reasonably evaluated the protester under criteria in documents that had been incorporated by reference into the proposal. The protester also alleged that the agency failed to properly investigate an organizational conflict of interest. Specifically, the protester contended, one of the awardee’s employees had masqueraded as a janitor at the agency’s facility and obtained confidential procurement material. But GAO found that the employee had not been masquerading as a janitor and did not have access to procurement information. Finally, GAO found that the to the extent there had been an error in the best value tradeoff, the protester, which had a higher-priced and lower-rated proposal, had not been prejudiced by it.
The Navy issued an RFP seeking services to support its Submarine Maintenance Engineering, Planning and Procurement (SUBMEPP) activity. Two offerors, ORBIS Sibro, Inc. and Patrona Corporation, responded to the RFP. Patrona, which had a slightly higher-rated and lower-priced proposal, received the contract. ORBIS protested alleging that the Navy applied unstated evaluation criteria, failed to reasonably investigate potential organizational conflicts and a Procurement Integrity Act violation, and muffed the best value tradeoff.
ORBIS contended the Navy applied unstated evaluation criteria by assigning the company a weakeness for failing to address backfit reliability centered maintenance (RCM), which is a method used to determine maintenance requirements. The term “backfit RCM” doid not appear in the solicitation but instead appeared in documents referenced by the RFP. Thus, ORBIS argued, it did not have notice that the Navy would evaluate its proposal for backfit RCM.
GAO, however, found that the Navy did not apply unstated criteria. The RFP expressly incorporated by reference a document addressing RCM, so it was part of the solicitation’s requirements. What’s more, the Navy advised ORBIS during discussions that it viewed the proposal’s failure to address RCM as a significant weakness. Thus, ORBIS could not have been surprised that its proposal was evaluated based on the RCM document incorporated by reference.
Next, ORBIS alleged that Patrona had unmitigated conflicts of interest and was implicated in a PIA violation. ORBIS’s argument focused on the conduct of a Patrona employee who, until 2015, had been the executive director of SUBMEPP, the requiring activity of this procurement. The Patrona employee had remained friendly with SUBMEPP staff and still socialized with them. What’s more, he worked on another contract that Patrona had with the Navy. As part of this contract, he had a facility pass and security clearance for authorized an unescorted access to SUBMEPP’s spaces.
This employee was seen several times at the SUBMEPP facility. On at least one occasion, the employee signed in at the SUBMEPP security desk, and instead of indicating that he worked for Patrona, he stated that he worked the facility’s janitorial services contractor. ORBIS claimed this employee was “masquerading as a janitor” to conceal his presence and surreptitiously review sensitive procurement materials. This, ORBIS alleged, resulted in an unequal access OCI—i.e., Patrona had access to information that gave it a competitive advantage in the procurement.
While the Navy could not really explain why this employee had signed in to the SUBMEPP facility as a janitor, GAO found that he did not “masquerade” as a janitor. While the employee signed in as a janitor once, on all other occasions he signed in as a Patrona representative. There was no evidence he dressed as a janitor. Moreover, even if he had, it was unlikely, given his previous prominence at SUBMEPP, that he could have passed undetected.
Moreover, GAO found while the Patrona employee had social contact with SUBMEPP staff, there were no “hard facts” that he had improperly received procurement information. All the procurement meetings were held in closed conference rooms, and all the procurement documents were password-protected or stored in files with permission-limited access. No member of the procurement team indicated that they had discussed the procurement with the Patrona employee. In short, there were no hard facts supporting the alleged unequal access OCI, so GAO refused to presume the ORBIS had been prejudiced by the Patrona employee’s conduct.
ORBIS also alleged that the Patrona employee’s conduct gave rise to biased ground rules and impaired objectivity OCIs. The allegations rested entirely on the fact that the employee helped organize a planning summit that generated action items for SUBMEPP. One of those action items was somewhat related to the procurement. But GAO found that neither the employee nor Patrona was responsible for carrying out the action items or had any role in developing them. Rather, Patrona’s role at the summit what been to help with organizational and logistical support. It had no role in establishing the ground rules for the procurement, and there was no evidence that this work impaired the company’s ability to provide impartial advice to the Navy.
Finally, ORBIS alleged that the best value tradeoff was unreasonable because the source selection decision did not address pass/fail elements of the proposals or the RFP’s factors and subfactors. But GAO noted that the solicitation explicitly noted that the pass/fail elements would not be assigned ratings, and it was difficult to conceive how they could have been qualitatively evaluated. Aside from this, even if the best value analysis did not address all the factors, ORBIS had not been prejudiced. Patrona had a higher-rated and lower-priced proposal. A best value tradeoff had not even been necessary.
ORBIS is represented by Jerome S. Gabig and Christopher Lockwood of Wilmer & Lee, PA. The intervenor, Patrona, is represented by Ambika Biggs of Hirschler Fleischer. The agency is represented by Ryan Banach and Sabrina Hay of the U.S. Nave. GAO attorneys Michael Willems and Edward Goldstein participated in the preparation of the decision.
