Protest challenging agency’s technical, past performance, and price evaluations is denied. The protester alleged that the awardee had submitted a proposal that did not satisfy a material solicitation requirement. GAO found that his argument was essentially an objection to patent ambiguity that should have been raised before the proposal deadline. The protester argued that the agency should have found its price unreasonable and then notified the company of its high price during discussions. But GAO found that the agency had properly found the protester’s price reasonable. The protester contended that the awardee’s initial proposal was so deficient it should have been rejected as incomplete. GAO reasoned that while the awardee’s initial proposal had deficiencies, it had been complete. The agency had not erred in allowing the awardee to correct its proposal through discussions.
The Navy posted a solicitation seeking land-based mobile electric power plants—i.e., towable generators used for aircraft maintenance. The solicitation contemplated award of a single IDIQ contract. Five offerors, including Aviation Ground Equipment Corporation (ACEG) and Essex Electro Engineers, submitted proposals. The Navy found that ACEG and Essex were technically equal, but it selected Essex’s lower-priced proposal for award. ACEG protested.
ACEG alleged that Essex’s proposal did not satisfy a material requirement of the solicitation. ACEG argued that during questions and answers the Navy had indicated that contractor’s proposed generator would need to power E2-D aircraft. An E2-D requires 140 kilo-volt-amperes (KVA) of power. ACEG contended that Essex’s proposal could not provide 140 KVA.
But GAO noted that the solicitation only required generators that could produce 120KVA. Also, there was no discussion in the solicitation about the amount of power that would be required for E2-D aircraft. Rather, ACEG had based this allegation on its professional experience. Assuming that ACEG was correct concerning the power required for an E2-D, its argument amounted to a challenge to a patent solicitation defect. Patent defects must be raised before the proposal deadline. Thus, ACEG had essentially waived this argument.
ACEG challenged the evaluation of Essex’s past performance, contending that the agency had failed to consider Essex’s extensive negative history of past performance. Indeed, 9 out of Essex’s 14 CPARs reflected less than satisfactory performance.
GAO, however, found that the Navy had noted that Essex had “a turbulent relationship with the government,” and that it had received significant negative feedback. Nevertheless, the Navy had found that Essex had replaced its engineering team on many of those contracts, and since that time, its CPARs had been uniformly satisfactory. Essex had proposed that same engineering team for this procurement. GAO could not find this evaluation unreasonable.
Next, ACEG argued that the Navy botched the price reasonableness evaluation. ACEG contended that if the Navy had properly evaluated reasonableness, it would have found the ACEG’s price unreasonable, and then advised the company during discussions that its price was too high.
GAO determined that the Navy had appropriately found ACEG’s price reasonable. To be sure, ACEG’s price was 35 percent higher than Essex’s and 30 percent higher than the government estimate. But a 35 percent difference is not per se unreasonable. What’s more, a third competitive offeror had proposed a price higher than ACEG’s, and that offeror’s price was also found to be reasonable.
ACEG claimed that the Navy failed to perform a price realism evaluation of Essex’s low price. GAO, however, noted that the solicitation stated that a price realism evaluation would only be performed in the event adequate price competition did not exist. The Navy had reasonably concluded that adequate competition existed.
Lastly, ACEG asserted that the Navy should have rejected Essex’s proposal as incomplete. ACEG contended that Essex’s initial proposal was so flawed that it didn’t count as deficient; it was simply incomplete. By conducting discussions with Essex and allowing it revise, the Navy had effectively allowed the company to submit its full proposal late.
GAO reasoned that while Essex’s initial proposal had been deficient, it had been complete. Agencies can reasonably open discussions where proposals do not provide all the information needed for evaluation. Agencies have significant discretion in selecting proposals for the competitive range. GAO could not say the Navy had erred in not rejecting Essex’s proposal.
What’s more, GAO noted, even if ACEG’s theory is correct, it could not demonstrate competitive prejudice. ACEG’s initial proposal had also had significant deficiencies. Had the Navy adopted ACEG’s reasoning, both proposals would have been rejected.
AGEC is represented by David B. Dixon, Robert C. Starling, and Toghrul Shukurlu of Pillsbury Winthrop Shaw Pittman LLP. The intervenor, Essex, is represented by Julie Nichols of Roeder, Cochran, Phillips, PLLC. The agency is represented by Karin W. Wiechmann of the Navy. GAO attorneys Michael Willems and Edward Goldstein participated in the preparation of the decision.
