Protest challenging the terms of a solicitation is sustained. The protester argued that the solicitation’s experience factor was ambiguous. The evaluation criteria under that factor stated that offerors would be assessed based on the depth of experience with similar projects, but the adjectival ratings stated that offerors would be rated based on their “approach” and “understanding” of the requirements. GAO found that the conflict resulted in an ambiguity. It was unclear whether offerors would be evaluated based on experience or on other information concerning their understanding and approach to the requirements. The protester raised several other challenges to the solicitation, but GAO did not find arguments compelling.
The Army Corps of Engineers issues a solicitation seeking operations and maintenance services at facilities in Afghanistan. IDS Government Services, LLC, which was the incumbent contractor, filed a protest challenging the terms of the solicitation. IDS contended that various provisions of the solicitation were ambiguous and that the Corps had improperly disclosed the company’s proprietary information.
IDS alleged that the solicitation’s experience factor contained an ambiguity between the evaluation criteria and the adjectival ratings. The experience factor’s evaluation criteria provided that the Corps would evaluate offerors based on the depth of their experiencing managing and executing similar projects. The adjectival ratings, however, provided that offerors would be assessed scores based on their approach and understanding of the requirements. IDS argued that the criteria for the experience factor were inconsistent with the adjectival ratings.
The Corps argued there was no ambiguity because, as GAO decisions have noted, adjectival ratings are simply guides to the decision making process. Even if the ratings conflicted with the criteria, it wouldn’t really impact the evaluation.
GAO sided with IDS. GAO decisions on adjectival ratings concerned the use of adjectival ratings in the source selection process, not as ambiguities in the solicitation. The experience factor was ambiguous because the criteria stated that offerors should identify their relevant experience while the adjectival ratings stated the agency would evaluate offerors’ approach and understanding. It was unclear whether offerors would be evaluated based on experience or on other information concerning their understanding and approach to the requirements.
Next, IDS contended the solicitation was ambiguous because it did not specify the relative importance of the non-price factors. But GAO noted that a solicitation is not ambiguous just because it does not indicate the relative importance of factors; rather, GAO interprets such a solicitation as giving equal weight to all the factors.
IDS argued that the phase-in and organizational plan factor was ambiguous concerning the credit that would be given to offerors who have access to bases on Afghanistan. GAO, however, found that a solicitation amendment resolved this ambiguity.
Next, IDS complained that the price evaluation factor was ambiguous concerning whether the agency would evaluate price realism. IDS acknowledged that the solicitation did not require the Corps to evaluate price realism. Nevertheless, the solicitation stated that the Corps would assesses whether proposals posed a risk of an improper buy-in. A buy-in occurs when an offeror submits an offer below anticipated costs with the expectation of increasing the contract amount after award or receiving a follow-on contract. IDS contended that an evaluation of price realism and assessment of buy-in were the same thing—i.e., they both looked to whether proposed prices were too low.
But GAO found that premise of IDS’s argument flawed: Price realism and buy-in are not the same. The concern with price realism is performance risk arising from prices that are too low. The concern with buy-in is that an offeror will attempt to cover a low price through performance or a follow-on contract. Thus, GAO found the solicitation was not ambiguous concerning a price realism analysis.
IDS alleged that the solicitation did not provide adequate information for various performance requirements. IDS claimed that as the incumbent, it was prejudiced by these informational deficiencies because other offerors did not have the same knowledge of the contract and could propose lower prices based on their lack of understanding.
GAO noted that an incumbent protester is not an interested party to argue that a solicitation does not provide adequate information to allow other offerors to meaningfully compete. An incumbent is not an interested party in this situation because it is essentially arguing that other offerors are uncertain about the requirements. A protester cannot maintain a protest, however, based on the harm to others. GAO recognized IDS’s concern that as the incumbent, it faced uncertainty as to whether other offerors would propose lower prices due to their comparative lack of information. But the argument still turned on an alleged lack of information for other offerors. As a result, IDS was not an interested party to raise this argument.
Finally, IDS asserted that the Corps had improperly disclosed the company’s proprietary information. The Corps had included some of IDS’s pricing information in a 2018 solicitation that sought similar services. At the time, the Corps acknowledged its error and cancelled the solicitation. Yet IDS argued that the offerors could still determine IDS’s likely prices in the 2020 solicitation based on information in the 2018 solicitation.
GAO found that the information disclosed in 2018 was no longer competitively useful. A number of factors, including costs, aging facilities, COVID-19, and security-related uncertainties affected the usefulness of the 2018 information. Moreover, GAO noted, government official may reasonably rely on the passage of time to conclude that information is no longer competitively useful. IDS had not cited anything unique about the 2018 information that established its usefulness more than two years later.
IDS is represented by David S. Black, Gregory R. Hallmark, and Amy L. Fuentes of Holland & Knight LLP. The agency is represented by William A. Wilcox, Jr. and Megan O. Jorns of the Army. GAO attorneys Jonathan L. Kang and Laura Eyester participated in the preparation of the decision.
