Protester Appropriately Assessed Weaknesses for Its “Begrudging Willingness” to Meet Solicitation Requirements; Johnson Controls Security Solutions, GAO B-418489.3, B-418489.4


Protest challenging agency’s technical evaluation is denied. The protester complained that it had been assessed weaknesses for not complying with solicitation requirements. GAO, however, found that the weaknesses were reasonable because the protester never really committed to complying with the requirements. Instead, the protester’s proposal evinced a begrudging willingness to comply with requirements if the agency requested. The protester also alleged that the agency unequally evaluated proposals, but GAO found that difference in the protester’s and awardee’s rating stemmed from substantive differences in their proposals. The protester contended the awardee’s technical approach should have been assessed weaknesses, but these arguments went nowhere.

The U.S. Marshal Service posted a solicitation seeking a contractor to provide inspection, maintenance, and repair service to security equipment at federal courthouses. Four offerors, including Johnson Controls Security Solutions and M.C. Dean, Inc., submitted proposals. The agency awarded the contract to M.C. Dean, finding that it had the best technical approach, better past performance, and a lower price than the other offerors. Johnson protested.

Johnson complained that it had been erroneously assigned a weakness for not complying with a requirement that proposed technicians have original equipment manufacturer certifications. Johnson claimed it technicians had the required certifications. Not so, said GAO. Johnson only proposed to maintain corporate certifications. GAO reasoned that while Johnson may have felt it had demonstrated compliance through an alternate solution, the agency reasonably assigned a weakness because Johnson did not fully commit to the requirement as stated in the solicitation

Johnson next claimed that the agency unreasonably assessed a weakness because Johnson’s approach did not demonstrate that the firm would maintain a physical project binder—containing project summaries, budgets, change management records etc.— as required the solicitation. Johnson had stated that it would maintain an electric binder and would keep a physical binder only if necessary. Again, GAO found that Johnson had failed to commit to an actual requirement in the PWS. At best, Johnson demonstrated a begrudging willingness to comply with the requirement. The agency was right to be concerned.

Johnson also alleged that it had been erroneously assigned a weakness for not demonstrating that its lead technician possessed required certificates. Johnson argued that the agency knew its lead technician possessed the requisite certifications due to its familiarity with the firm’s performance as the incumbent contractor. GAO denied this allegation, reasoning that an offeror’s technical evaluation is purely dependent on the information furnished rather than information arguably in the agency’s possession.

Johnson further claimed that the agency unequally evaluated proposals in various ways. Johnson contended that M.C. Dean was awarded a strengths for proposing to perform preventative maintenance, but Johnson did not receive a strength for similarly proposing preventative maintenance. GAO, however, found that Johnson did not really commit to perform preventative maintenance; instead it stated that it would perform preventative maintenance upon government request. Once again, this indicated that Johnson was not really committed to performing preventative maintenance.

Johnson argued that the agency unequally evaluated preventative maintenance plans, assessing a strength to M.C. Dean for proposing a preventative maintenance test procedure but not assigning a strength to Johnson for a similar testing plan. GAO did not find this persuasive. Unlike M.C. Dean’s plan, Johnson’s did not identify the frequency of testing procedures for each component of equipment consistent with manufacturer recommendations.

Johnson additionally claimed the agency misevaluated M.C Dean’s proposal. Johnson contended M.C. Dean had made assumptions about the functionality of the project/inventory management system that created a high risk of unsuccessful performance. But GAO opined that the agency did not unreasonably fail to assign risk to M.C. Dean’s approach. The record showed that the agency considered M.C. Dean’s approach and found that it simply did not present a high risk.

Johnson contended the agency unreasonably viewed M.C. Dean’s facilities as advantageous features. GAO found that the facilities actually were beneficial because they enhanced the efficiency of installation and non-routine maintenance.

Johnson alleged the agency should have assigned risk to M.C. for its extreme reliance on subcontractors. The solicitation, however, did not contain any evaluation criteria requiring the agency to evaluator offerors’ reliance on subcontractors. In any event, the record showed that the agency understood that M.C. Dean would be using subcontractors and did not find it risky.

Finally, Johnson argued that its past performance should have been reviewed more favorably because its record on the incumbent contract was overwhelmingly positive. GAO found the agency’s evaluation unobjectionable. Johnson may have believed it had stellar performance, but the record showed that Johnson had mostly moderate performance.

Johnson is represented by David R. Johnson, Tyler E. Robinson, and John Satira of Vinson & Elkins, LLP. The intervenor, M.C. Dean, is represented by John R. Prairie, Cara L. Lasley, Moshe B. Broder, and Nicholas Perry of Wiley Rein LLP. The agency is represented by C. Joseph Carroll of the Department of Justice. GAO attorneys Todd C. Culliton and Tania Calhoun participated in the preparation of the decis

GAO - Johnson Controls Security Solutions