Protest challenging the rejection of offeror’s proposal as technically unacceptable is denied. The agency did not apply unstated evaluation criteria when it questioned the availability of the protester’s proposed key personnel. Additionally, the protester could not criticize the agency for failing to understand the resumes submitted for key personnel. The burden of presenting clear information in a proposal is on the offeror. The agency did not treat offerors disparately when it assigned a deficient rating to the protester, because the protester had more far more deficiencies in its proposal than other offerors. Finally, the agency had no obligation to seek clarifications from the protester when clarifications would not have resolved the problems with the protester’s proposal.
The State Department issued a solicitation seeking contractors to design and build and embassy in Montenegro. The solicitation contemplated award to the lowest-priced, technically-acceptable proposal. Four offerors, including Caddell Construction and B.L. Harbert International (BLH), submitted proposals. The agency’s evaluators assigned Caddell a deficiency under the solicitation’s Management and Organization factor. The source selection officer determined that this deficiency made Caddell’s proposal technically unacceptable. Award was made to BLH. Caddell protested, challenging the deficiency. BLH intervened. The parties all moved for judgment on the administrative record.
Caddell first argued that the State Department erred in penalizing Caddell for not adequately addressing the transition of key personnel. Caddell had proposed key people who were working on overseas federal construction projects. The agency questioned whether these people would be available and how would their transition would affect other projects. Caddell argued that the solicitation did not require offerors to explain how key personnel would be transitioned so the agency applied unstated evaluation criteria.
But the court found the evaluation reasonable. The solicitation included a requirement that offerors explain when key personnel commitments end. Caddell’s proposal only noted that key personnel would be available on the date the notice to proceed is issued. The notice to proceed, is not a set date or even a date range. Thus, Caddell was only moderately responsive at best to the solicitation. It was entirely reasonable for the court to express concern over when personnel would be available.
Next, Caddell objected to a deficiency it receive for the lack of experience its key personnel had working together. Caddell again argued that the agency applied unstated criteria because there was nothing in the solicitation that stated that key personnel had to have a minimum number of years working together. The court, however, found that Caddell had misstated the agency’s assessment. It was not that the agency decided that each offeror had to have a specific amount of experience. Rather, the State Department had found that the amount of experience that Caddell’s team had working together was not sufficient to provide a professional level of project management. The court reasoned that the agency had made a qualitative assessment of experience rather than a quantitative evaluation.
Caddell further argued that it was wrongly penalized for failing to include personnel with the required amount of work experience. Caddell contended that its personnel had the requisite experience, and that the agency simply misunderstood the submitted resumes. Indeed, Caddell asserted, if the agency was unsure of Caddell’s experience it could have sought clarifications.
The court found that this argument wrongfully placed the burden on the agency to seek follow-up clarifications. Caddell could not criticize the agency for failing to understand its proposal. Rather, Caddell had the burden of presenting thorough information for each of its proposed personnel.
Caddell contended that the State Department engaged in disparate treatment because two other offerors were assigned weaknesses under the Management and Organization factor, but unlike Caddell, they were not rated as deficient under that factor. The court noted, however, that Caddell received far more deficiencies—as opposed to mere weaknesses—than other offerors. What’s more, Caddell’s deficiencies related to different aspects of its proposal then the deficiencies found in the other offerors’ proposals.
Caddell also argued that just because it received a deficiency under one factor did not mean that its proposal should have been rated as overall unacceptable. But the solicitation stated that a proposal may be deemed unacceptable if it contained deficiencies which discussions could not cure. Thus, the court reasoned, the State Department was free to eliminate any proposal that contained deficiencies that were too important to overlook. Even if the evaluators did not find Caddell’s deficient rating under one factor disqualifying, the source selection official acted within his authority in finding the Caddell’s proposal unacceptable.
Finally, Caddell argued that the agency abused its discretion by not seeking clarifications from Caddell to address the problems with its proposal. Yet the court found that the problems with Caddell’s proposal could have only been resolved with discussions, not clarifications.
Caddell is represented by Dirk Haire, Sean Milani-Nia, Sara Falk, and Ronni Two of Fox Rothschild, LLP. The intervenor, BLH, is represented by Mark D. Colley, Sonia Tabriz, and Michael E. Samuels of Arnold & Porter Kaye Scholer LLP. The government is represented by John R. Roberson, Joseph H. Hunt, Robert E. Kirschman, Jr., and Douglas K. Mickle of the U.S. Department of Justice as well as John W. Cox of the U.S. Department of State.
