Protest challenging every deficiency and significant weakness assigned to the protester’s proposal is sustained. The agency failed to properly the document the deficiencies or weaknesses. While the agency attempted to justify it ratings in response to the protest, GAO rejected its arguments, finding that the agency’s alleged concerns were not supported by the evaluation record.
The Navy posted a solicitation seeking grounds maintenance services at various facilities in Virginia and Maryland. The solicitation provided that award would be made to the lowest-priced, technically acceptable proposal. Leumas Residential, LLC and DSA, LLC submitted proposals. Due to multiple deficiencies and significant weaknesses, the Navy found Leumas’s proposal technically unacceptable. DSA received the award. Leumas protested.
Leumas first objected to a deficiency it received for violating the solicitation’s limitation on subcontracting clause. The clause provided that at least 50 percent of the contract had to be performed by the prime contractor. Leumas had stated in its proposal that it intended to enter a subcontractor agreement under which the subcontractor would perform mowing as well as tree and landscape maintenance. From this statement, the Navy concluded that Leumas’s subcontractor would be performing more than 50 percent of the work.
GAO, however, found that nothing in the evaluation records indicated why the Navy thought this statement amounted to a violation of subcontracting limitations. In response to the protest, the Navy essentially contended that because the contract mostly involved grounds work, and the subcontractor would be mowing and maintaining, it appeared that the subcontractor would be performing most of the work.
But GAO found that the language in Leumas’s proposal did not, on its face, indicate that the company did not intend to comply with the 50 percent requirement. Rather, the language merely reflected the Leumas’s intent to enter a subcontracting agreement in the future. An offeror need not affirmatively demonstrate compliance with a subcontracting limitation in its proposal. Such compliance is presumed unless specifically negated by other language in the proposal. Here, the language in the proposal did not specifically negate the subcontracting limitation.
Next, Leumas challenged a deficiency it received for not proposing an on-site quality control manager. The Navy had determined, based on color-coding in Leumas’s organization chart—which coded the quality manager the same color as corporate staff—that the company had not proposed a on-site quality control manager as required by the solicitation. GAO found that the Navy should not have made inferences based the color coding, which appeared to refer to location over which staff had responsibilities, not whether they would be on-site. What’s more, nothing in the solicitation required offerors to affirmatively state that the quality manager would be on-site, and noting in Leumas’s proposal stated that the manager would off-site.
Leumas also challenged a deficiency it received for its approach to complying with Virginia environmental regulations. Leumas had proposed that its staff would familiarize themselves with the regulations and train employees to comply with the regulations. The Navy had assessed a deficiency because Leumas not demonstrated current knowledge of the environmental regulations.
GAO noted that while the Navy may have had concerns about the feasibility of Leumas’s approach, the record contained nothing documenting this concern. Rather the record only showed that the Navy was concerned about Leumas’s current knowledge of regulations. But current knowledge of Virginia regulations was not a requirement of the solicitation. The solicitation only required offerors to explain how they would ensure compliance with regulations. Leumas’s proposal had sufficiently stated that it would ensure compliance through training.
Leumas further contended that the Navy erred in assigning it a significant weakness for its transition plan. Leumas had indicated that during the transition, its employees would be trained in accordance with rules and regulations. The Navy argued this was a weakness because Leumas had proposed untrained staff. But GAO found that the Leumas’s transition plan met the minimum requirements of the solicitation. It was only after the protest was filed that the Navy asserted that its concern about staff training. The record included no support for the Navy’s now-articulated training concern.
The Navy assigned another significant weakness to Leumas because there appeared to be no corporate oversight of on-site project managers. GAO found no support for this claim in the evaluation record. In its protest filings, the Navy argued that this weakness was justified by a statement Leumas made in its proposal about empowering managers. The Navy believed this statement indicated that corporate management was delegating its authority to on-site managers. GAO dismissed this because there was nothing in the contemporaneous record to indicate that this concern was the basis for the weakness.
The Navy assessed a significant weakness for Leumas’s failure to include a contractor work plan for pest control. Leumas noted that it included such a plan in its proposal. The Navy argued in its protest filings that it really assigned the weakness because Leumas’s proposal failed to explain how the company would follow the principles of integrated pest management. GAO noted, however, that this concern was absent from the contemporaneous record. The evaluation simply stated that Leumas’s pest control plan was not included. It appeared that the Navy was “effectively putting words into the mouth of the SSEB . . that [were] entirely absent form and contradicted by the contemporaneous record.”
Lastly, the Navy assessed a deficiency to Leumas for failing to provide safety data. The solicitation required offerors to provide various safety related rates—experience modification rate, OSHA days award from work, etc.—for the past three years. Leumas provided data for all three years, but for two of those year, it listed a “0” because it had no annual losses in insurance claims for those years. The Navy had interpreted this 0 as providing no information for those two year. GAO rejected the Navy’s interpretation, finding that a 0 safety rate was responsive to the solicitation. There was nothing in the solicitation that required offerors to explain a 0 rate, and there was nothing in the record to indicate the Navy believed Leumas should have had a 0 rate.
Leumas is represented by Jonathan D. Shaffer, Armani Vadiee, and Zachary D. Prince of Smith Pachter McWhorter PLC. The intervenor, DSA, LLC, is represented by Timothy F. Valley, Pamela J. Mazza, and Meghan F. Leemon of Pilierio Mazza PLLC. The agency is represented by Kenneth Jerome Rich, Sr. and Kyle Krombach of the Navy. GAO attorneys Young H. Cho and Peter H. Tran participated in the preparation of the decision.
