Protester Can’t Convince GAO That Its Failure to Identify Risks Was the Result of an Approach that Simply Eliminated Risks; Project W Restoration, LLC, GAO B-418419 et al.


Protest challenging agency’s technical evaluation, cost realism analysis, and best value tradeoff is denied. The protester challenged a weakness it had received for failing to identify risks. The protester contended it did not identify risks because its approach eliminated risks. GAO rejected this argument, finding that the protester should have still identified the risks it approach purportedly eliminated. The protester also argued that the cost realism evaluation was flawed because the agency ignored differences in offerors’ cost assumptions. GAO found that the agency had considered the differences but reasonably found they did not affect cost. The protester further complained about discriminators the SSA found in favor of the awardee. GAO found the discriminators reasonable.

The Department of Energy published a solicitation seeking radioactive and hazardous waste cleanup services. The solicitation contemplated the award of IDIQ contract. Evaluation was based on three sample task orders that would be representative of the IDIQ’s scope of work.

Project W Restoration (PWR) and Central Plateau Cleanup Company (CPC) submitted proposals. DOE assigned identical adjectival ratings to PWR and CPC on the three non-price factors. CPC had a slighter higher price. Nevertheless, the SSA found discriminators in favor in CPC on two non-price factors. The SSA awarded the contract to CPC, finding its proposal presented the best value. PWR protested.

PWR challenged a weakness it received under a subtask of one task order for proposing to perform concurrent, overlapping activities in the same area. PWR contended the weakness was unwarranted because its schedule had enough flexibility to mitigate any risk of overlap. GAO was unpersuaded, noting that despite proposing to perform overlapping work, PWR failed to identify the risks involved with its approach and solutions to mitigate those risks.

Next, PWR objected to a weakness it received for failure to identify risks for subtask of one the task orders. PWR essentially contended that it didn’t identify risks because its approach was structured in a way that eliminated risks. But GAO found that it was not apparent from the proposal or the protest filings that PWR addressed risk. Instead, PWR had simply stated there were no risks. The evaluators reasonably understood this to mean that PWR had not identified any risks.

PWR complained that DOE had treated offerors unequally when it assigned PWR a risk for its integrated schedule but did not assign CPC a risk for its similar schedule. GAO, however, found that there were material differences between the offerors’ schedules. Thus, the different ratings were based on different approaches.

PWR further alleged that DOE failed to properly evaluate cost realism by disregarding assumptions in proposals regarding certain anticipated costs. Specifically, PWR contended that DOE ignored differences in the offerors’ training costs that gave CPC a competitive advantage. GAO found that the DOE recognized these differences but simply concluded that they did not provide the basis for a cost adjustment.

PWR also objected to the source selection decision and the discriminators the SSA found in favor of CPC. In particular, DOE had found the CPC’s proposed program manager was more qualified based on the depth and recency of his very relevant experience. PWR asserted that DOE had placed undue weight on the program manager’s experience on another contract. PWR noted that when evaluating past performance, DOE had found this other contract to be merely relevant. But when evaluating key personnel, the agency had found the contract very relevant.

GAO found nothing unreasonable about this. The solicitation required the agency to evaluate past performance in terms of scope, size, and relevancy. The agency evaluated key personnel, however, based on an individual’s relevant experience performing similar work. Nothing in the solicitation required the program manager to have experience performing the entire scope of work of the current requirement for his experience to be considered very relevant.

Lastly, PWR contended that DOE disregarded cost/price in the source selection. PWR took issue with statement the SSA made in the decision about how cost estimates were difficult to project due to unknown variables. But GAO found that these statements did not show that the SSA disregarded cost. Rather, it simply demonstrated why cost/price—due to its uncertainty—was the least important evaluation factor.

PWR is represented by Marcia G. Madsen, David F. Dowd, Luke Levasseur, and Roger V. Abbott of Mayer Brown LLP. The intervenor, CPC, is represented by Richard B. O’Keeffe, Jr., Samantha S. Lee, William A. Roberts, III, Moshe B. Broder, and Adam R. Briscoe of Wiley Rein LLP. The agency is represented by H. Jack Shearer, John L. Bowles, and Christie Alvarez of the Department of Energy. GAO attorneys Heather Weiner and Jennifer D. Westfall-McGrail participated in the preparation of the decision.

GAO - Project W Restoration, LLC