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Protest challenging weaknesses assigned to proposal is sustained. GAO found that each weakness assigned to the protester’s proposal was unreasonable. In some instances, the agency assessed the protester against criteria not listed in the proposal. In others, the agency unfairly evaluated proposals by assigning the protester weaknesses for certain aspects of its proposal but letting similar flaws in the awardee’s proposal slide.

The Army Corps of Engineers published a solicitation seeking environmental remediation services. Weston-ER Federal Services, LLC and APTIM Federal Services submitted proposals. The Corps awarded the contract to APTIM. Weston protested challenging the weaknesses assigned to its proposal.

Weston first challenged a weaknesses it received under the solicitation’s previous experience factor. Under that factor, offerors were required to identify four projects that they had performed as a prime contractor. The solicitation required offerors to identify the award type—e.g., firm fixed-price, cost reimbursable, describe why the project was relevant, and explain how the work performed related to the work anticipated under the solicitation.

The Corps assigned Weston a weakness for one of its projects, finding that it was unclear when work on the project had begun. Weston had stated in its proposal that two managers had begun remediation work on the project within 10 days. The Corps, however, reasoned that it was not reasonable to assume that a contractor would direct two managers initiate and perform remediation themselves.

GAO found that the weakness was unreasonable. The Corps had not explained why it was not possible for two managers to initiate and perform remediation themselves. The solicitation only required that the project demonstrate on-site remediation within 14 days. It did not include an definition of what the agency considered to the be the commencement of on-site remediation. The Corps provided an insufficient basis for this weakness.

Next, Weston objected to a weakness it received because it was not clear whether remediation work it performed after hurricanes met the solicitation’s definition of a project. The solicitation defined a project as work performed under a single task order or contract at a single location. The Corps assigned a weakness because the work had not been performed at single location; rather, it had been performed at various locations in Puerto Rico and the Virgin Islands.

Weston alleged that this weakness amounted to disparate evaluation. APTIM had proposed a project that had been performed on four different ships and at two different shipyards, but it had not received a similar weakness.

GAO agreed with Weston. The Corps believed that APTIM’s ship project complied with the definition of a project because the multiple shipyards involved were contiguous. But GAO found that this position was contradicted by publicly available information. The two shipyards were separate facilities with separate owners. The Corps had not adequately explained how these shipyards qualified as one single site.

Weston challenged a third weakness it received under the previous experience factor for not explaining the cost growth in one of its past projects. GAO found the assessment of this weakness was unreasonable. The solicitation did not require offerors to explain the difference between a past project’s award amount and final cost at completion. Thus, the Corps had applied unstated criteria.

Moreover, GAO found that in assessing this weakness, the Corps had engaged in disparate treatment. APTIM had explained the cost growth in one of its project with two words: “Scope Added.” The Corps found that this explanation sufficient. But the Corps had inexplicably found Weston’s explanation for cost growth —“significant cost growth”—inadequate. These simultaneous conclusions were unreasonable.

Weston also challenged a weakness it received under the past performance factor. The agency had found that one the company’s proposed projects was less relevant because it had been a time and materials task order. The Corps argued that it was logical to find a time and materials order less relevant when the solicitation provided that only fixed-price and cost-reimbursable orders would be issued.

GAO rejected the Corps’ argument. The solicitation allowed offerors to submit any type of contract. The Corps had failed to explain why a time and materials contract, by itself, increased the risk of unsuccessful contract performance or how performance of a time and materials contract amounted to a weakness.

GAO recommended that the Corps either reevaluate proposals or reconsider its requirements.

Weston is represented by John G. Horan and Michelle Y. Francois of Faegre Drinker Biddle & Reath LLP. The intervenor, APTIM, is represented by Kenneth B. Weckstein and Andrew C. Crawford of Brown Rudnick LLP. The agency is represented by Stanley E. Tracey and William G. Latka of the Army. GAO attorneys Charmaine A. Stevenson and Laura Eyester participated in the preparation of the decision.