The protesters contended there were some news articles discussing the awardees’ negative performance on other contracts, and that the agency should have considered these articles when evaluating the awardees’ past performance. Under the “too close at hand” doctrine, an agency may have an obligation to consider past performance information outside of an offeror’s proposal. But that doctrine only applies if the outside information relates to contracts for the same services with the same procuring activity. Here, while the news articles may have touched on negative past performance, they did not, for the most part, involve the same agency, and there was no evidence any evaluators were personally aware of this.
CrowderGulf, LLC; DRC Emergency Services, LLC; Phillips & Jordan, Inc., GAO B-418693.9 et al.
Background
The Army posted an RFP seeking to establish IDIQ contracts for debris management services. The RFP contemplated two groups of awards, one for small businesses and an unrestricted group. For the unrestricted group, the Army planned to award an IDIQ contract for each of eight regions.
Several offerors submitted proposals for the unrestricted group. After an initial award, a protest, corrective action, and proposal revisions, the Army selected AshBritt, Inc for some of eight regions and ECC Constructors for the others. Three unsuccessful offerors—CrowderGulf, LLC, DRC Emergency Services, and Phillips & Jordan, Inc.—protested.
Legal Analysis
Unequal Access Argument Was Untimely
DRC argued the agency provided offerors with unequal access to information as part of the corrective action taken after an initial award. DRC acknowledged that this argument appeared untimely, but citing Federal Circuit precedent, the company argued that the argument was timely because it had previously raised this issue prior to proposal submission.
GAO noted that in the case DRC cited, Harmonia Holdings Grp., LLC. v. United States, 20 F.4th 759 (Fed. Cir. 2021), the court held that a protester had not waived a challenge to a solicitation when it had previously raised the issue in an agency protest. But in this case, DRC had not filed an agency protest. While DRC communicated with the agency about its expectation of equal access to information, this communication had not conveyed any specific dissatisfaction with the agency’s actions. Because DRC had not actually filed an agency protest, it had not preserved its stale unequal access argument.
Unbalanced Pricing
CrowederGulf and DRC both contended that the Army’s assessment of unbalanced pricing was flawed. GAO has previously held that a balanced pricing analysis based on a standard deviation is overly mechanical and thus unreasonable. Here, the protester’s argued the Army had improperly relied on a standard deviation calculation.
But GAO found that the Army did more than merely calculate a standard deviation. The Army had conducted discussions with offerors concerning unbalanced prices. Additionally, the Army compared proposed CLIN pricing for balance and considered whether the agency could end up paying unreasonably high prices. GAO had no reason to question the balanced pricing analysis.
Unequal Evaluation
Phillips & Jordan and CrowderGulf both argued the Army disparately evaluated their proposals. They argued that AshBritt was assigned a strength for its detailed explanation of its automated debris management system, and that they should have received a strength for virtually identical proposal features.
But GAO found that the protesters’ approaches were not virtually identical. While both provided a debris management system, neither protester provided the same level of examples or visualization of their systems’ capabilities.
Past Performance/Close at Hand
CrowderGulf and Phillips & Jordan contended the Army failed to consider the awardees’ poor past performance documented in news articles, settlement agreements, and investigation. The protesters argued that this information was too close at hand for the agency to ignore.
In certain situations an agency has an obligation to consider outside information bearing an offeror’s past performance when it’s “close at hand.” Nevertheless, GAO reasoned, the “too close at hand” doctrine does not apply to every case where an agency may conceivably find information. Rather, to be considered “close at hand” the information must relate to contracts for the same services with the same procuring activity, or it must be information personally known to the evaluators. Here, only one of the news stories concerned work related to an Army procurement. But the protesters had not demonstrated the agency had knowledge of the issues raised in the articles. Indeed, nothing in the record demonstrated that any evaluators were personally aware of the awardees’ allegedly negative past performance. The past performance evaluation was reasonable.
Meaningful Discussions
CrowderGulf and DRC complained that the agency’s discussions were not meaningful because the Army did not inform them of their relatively high prices. GAO rejected this argument. Unless an offeror’s price is so high as to be unreasonable, an agency is not required to inform an offeror that its price is high in comparison to others’. Here, the agency did not find CrowderGulf’s or DRC’s prices unreasonably high. Thus, it was not required to discuss price further with them.
CrowderGulf is represented by William M. Jack, Amba M. Datta, and Ken M. Kanzawa of Kelley Drye & Warren LLP. DRC is represented by David R. Hazelton, Kyle R. Jefcoat, Julian Lippman, and Joshua Craddock of Latham & Watkins LLP. Phillips & Jordan is represented by Robert J. Symon, Patrick R. Quigley, and Nathaniel Greeson of Bradley Arant Boult Cummings LLP. Intervenor AshBritt is represented by Neil H. O’Donnell, Jeffrey M. Chiow, Lucas T. Hanback, and Stephen L. Bacon of Rogers Joseph O’Donnell. Intervenor ECC Constructors is represented by Richard B. Oliver and J. Matthew Carter of Pillsbury Winthrop Shaw Pittman LLP. The agency is represented by Tristan S. Brown and Rebecca E. Martinez of the Army. GAO attorneys Christopher Alwood and Christina Sklarew participated in the preparation of the decision.
