Protest challenging various aspects of agency’s evaluation is denied. The protester contended that the agency should have considered language from the proposal instructions in evaluating proposals. The court found that the proposal instructions were not evaluation criteria, and the agency had properly limited its evaluation to the actual evaluation criteria. The protester also asserted that the awardee had made a misrepresentation in its proposal regarding compensation, but the court found the protester had mischaracterized the awardee’s proposal. The protester further alleged that the awardee’s low prices presented a performance risk. The court, however, opined that the agency was not required to evaluate price realism.
The Department of Energy issued a solicitation for post-closure services at sites that had been used for nuclear material production and research during the Cold War. DOE received proposals from five offerors, including Navarro Research and Engineering, Inc., RSI EnTech, LLC, and LATA-Atkins Technical Services, LLC (LATAS). DOE assessed identical ratings to Navarro, RSI, and LATAS under the non-price factors. But the SSA selected RSI for award, finding that its proposal had multiple discriminating factors that made it stand it out. The SSA determined that LATAS’ proposal was ranked second wile Navarro’s was third. Navarro protested.
Navarro claimed that DOE failed to evaluate proposals in accordance with the evaluation criteria. Navarro contended that DOE should have considered the proposal preparation instructions in Section L of the solicitation. That section required offerors to demonstrate the extent of skills, knowledge, and experience that personnel had with work in a similar environment. Navarro argued that when those instructions were read in conjunction with the criteria in Section M of the solicitation—which required offerors to materially comply with the proposal instructions—it required DOE to evaluate the extent of an offeror’s ability to meet the requirements of Section L. And, if DOE had considered the extent to which offerors coule meet Section L, Navarro posited, its proposal would have received more strengths.
The court was not convinced by Navarro’s argument. Section L contained proposal instructions, and Section M set forth the evaluation factors. While Section M required offerors to comply with instructions, this really just directed offerors to submit a complete proposal with all the requested information. Section M, however, did not convert Section L into evaluation factors. Rather, Section L instructed offerors to demonstrate the extent of their knowledge and experience while Section M incorporated that directive by noting that the evaluation would consider “the extent to which , . . . the approach demonstrates . . . skills, knowledge and experience.” The record showed that DOE treated Section L instructions as binding and accordingly evaluated proposals for completeness and accuracy. The agency also evaluated each offeror’s skills and experiences pursuant to Section M. DOE was not required to perform an additional Seciton L skills and experience evaluation.
Next, Navarro argued that RSI had made a misrepresentation in its proposal when it claimed it would provide compensation aligned with current salary benefits. But, Navarro argued, RSI’s proposed prices failed to cover the base salary and benefits of incumbent personnel. The court, however, found that Navarro was mischaracterizing RSI’s proposal. RSI ‘s proposal did not rely ion maintaining the incumbent workforce. Instead, RSO wanted a small group of incumbent staff. Thus, the fact that its compensation did not cover the entire incumbent staff was beside the point. Moreover, the fact that RSI’s prices did not cover the incumbent staff did not mean the company had made a misrepresention. It merely indicated that the company was willing risk proposing salaries lower than the compensation level for the incumbent staff.
Navarro also claimed that RSI’s labor rates were unrealistically low, which represented a performance risk that DOE should have accounted for. The court, however, found that nothing in the solicitation required DOE to evaluate price realism or required proposals to be rejected for proposing a price that was too low. The solicitation clearly stated that price would only be evaluated for fairness, reasonableness and completeness.
Navarro contended that DOE failed to evaluate the impact of corporate transaction involving one of RSI’s teaming partners. But the court found that upon learning of the transaction, the contracting officer evaluated the transaction and its results and determined it did not impact RSI’s responsibility.
Navarro further complained that the agency had minimized Navarro’s technical superiority and flattened discriminators in a quest to accept RSI’s lower-priced offer. The court round that the only evidence that DOE inflated or deflated offerors’ ratings was Navarro’s assumption that the ratings would have been different if the agency had not done so. This was not enough for the court to question the agency’s conclusions.
Finally, Navarro argued that DOE should have found the second-rated offerors, LATAS, ineligible because one of its key personnel was no longer employed by the company. The court found that the evidence in support of this argument fell outside the agency record and was not before the agency at the time of award. The court declined to substitute its own judgment with respect to the assessment of the availability of key personnel.
Navarro is represented by Richard P. Rector, Samuel B. Knowles, Thomas E. Daley, and Ryan P. Carpenter. The intervenor, RSI Entech, is represented by Damien C. Specht, James A. Tucker, Caitlin Crujido, and Lyle F. Hedgecock. The government is represented by Joshua E. Kurland, Michael D Granston, Robert E. Kirschman, Jr., and Douglas K. Mickle of the Department of Justice as well as Monekia G. Franklin of the Department of Energy.
