Protest challenging agency’s evaluation of the protester’s and awardee’s proposals is dismissed in part and denied in part. The protester argued the agency erred by failing to evaluate price realism. But the solicitation contemplated a fixed-price contract. Agencies are not required to evaluate realism for a fixed-price contract. The protester argued that the agency failed to consider the whether the awardee had proposed low labor rates or deficient manpower levels. Nothing, in the solicitation, however, required the agency to evaluate labor rates or manpower. The protester also alleged the Good rating assigned to its technical approach was inconsistent with the language used in the agency’s evaluation narrative. But GAO found that an agency is not required to use the exact words from the solicitation’s definition of a Good rating in the evaluation narrative.
The Department of Energy issued a solicitation seeking facilities maintenance and management services. Several offerors, including U.S. Facilities (USF) and EMCOR government services responded. DOE awarded the contract to EMCOR, finding that it had a higher rating and lower price than USF. USF protested.
USF first argued that DOE erred by not evaluating EMCOR’s proposal for price realism. GAO noted, however, that the solicitation contemplated award of fixed-price contract. For a fixed-price contract, absent (1) an express price realism provision or (2) a statement that the agency will review prices to determine whether they reflect a lack of technical understanding, agencies are not required to conduct a price realism evaluation. Here, the solicitation did not have a price realism provision and did not obligate DOE to determine whether low prices reflected lack of understanding. Thus, GAO concluded that USF had failed to make a threshold showing that it could prevail on this protest ground. Accordingly, GAO dismissed this protest argument.
Next, USF argued that EMCOR’s low price necessarily implied that the company proposed lower rates than USF or significantly reduced manpower. Thus, USF contended, EMCOR’s technical approach should not have received an Outstanding rating.
But GAO found that the agency was not required to evaluate labor rates or manpower levels as part of the technical evaluation. The solicitation stated that under the technical factor, DOE would only assess method of operations, understanding of requirements, lessons learned, and small business participation. The solicitation said nothing about labor rates or manpower. In fact, USF’s own proposal contained no reference to labor rates or manpower. GAO found that this argument also failed to state a valid protest ground.
USF further objected to a weakness it received for failing propose shift supervisors at one of DOE’s facilities. USF contended that DOE had failed to adequately explain why the lack of shift supervisors at this facility would increase the risk of unsuccessful performance.
GAO found that contrary to USF’s contentions, the agency had documented, in a textbook fashion, why the lack of shift supervisors increased performance risk. Specifically, without supervisors, there would be no point of contact between DOE and staff, which could result in miscommunications.
Finally, USF took issue with the Good rating assigned to its technical approach. USF alleged that language in the evaluation narrative was inconsistent with the definition of a Good rating because it did not include any language form the Good definition.
GAO found that this argument reflected a fundamental misunderstanding of the of the evaluation process. An agency is not required to use the words from the adjectival definitions in the evaluation narrative. The mere fact that DOE did not parrot the Good definition did not make the evaluation unreasonable. In any event, GAO noted, USF had failed to establish that it had been prejudiced by the purported error. EMCOR did not receive the award because of USF’s Good rating. Rather, it received the award because the underlying features of its proposal were superior.
USF is represented by Karen R. Harbaugh, Jeremy W. Dutra, and John R. Sharp of Squire Patton Boggs (US) LLP. The intervenor, EMCOR, is represented by Kenneth B. Weckstein, Shlomo D. Katz, and Andrew C. Crawford of Brown Rudnick LLP. The agency is represented by Stephanie B. Young and Kevin R. Hilferty of the Department of Energy. GAO attorneys Louis A. Chiarella and Peter H. Tran participated in the preparation of the decision.
