Protest that agency applied unstated evaluation factors and failed to conduct meaningful discussions is sustained, where the solicitation did not state that offerors must submit reference contracts demonstrating only certain experience and a dollar value range in order to receive a rating of acceptable or higher under the experience evaluation factor, and where the agency’s discussions failed to inform the protester that it hadn’t met those undisclosed requirements.
EFS EBrex Sarl protested the Defense Logistics Agency’s award of a contract to Coastal Pacific Food Distributors Inc. to provide subsistence prime vendor support for the military and other federally-funded customers in Japan, Singapore, Diego Garcia, and the Philippines. Ebrex asserted that the agency’s evaluation and source selection decision were based on unstated evaluation factors, and that the agency failed to conduct meaningful discussions.
Ebrex argued the solicitation did not provide that only experience performing “full line food service” contracts would be considered relevant, and that an offeror’s proposal must demonstrate 80 percent of the estimated annual dollar value of the competed procurement to obtain an experience rating of acceptable or higher.
GAO found that the solicitation advised offerors that the agency would consider the relevance of an offeror’s experience, including experience performing deliveries as a full line food service distributor, dollar value, and number of customers. However, GAO agreed that nothing in the solicitation either stated, or could be reasonably construed as: (1) precluding a rating of acceptable under the experience factor if the level of relevant experience fell below 80 percent of the estimated dollar value of the competed contract; or (2) limiting the experience considered relevant to only experience as a “full line food service distributor.”
GAO found these criteria were not reasonably encompassed within the solicitation’s evaluation scheme, and therefore offerors could not reasonably expect to be evaluated under them. Based on the solicitation, GAO did not believe offerors would reasonably understand that a level of experience below 80 percent of the competed contract’s estimated dollar value would preclude a rating of acceptable or that only experience as a “full line food service distributor” would be considered relevant for purposes of applying the unstated 80 percent factor.
Further, GAO agreed that the agency’s discussion questions did not reasonably lead Ebrex to understand that such requirements would be applied, and were in fact, misleading regarding the relevance of Ebrex’s proposed subcontractor’s experience. Specifically, the agency’s discussion questions noted that the proposed subcontractor’s contracts were not “full line food service distribution” contracts, did not advise Ebrex that only such contracts would be considered relevant. Instead, the agency complained that the protester’s proposal failed to clearly demonstrate how the subcontractor would have meaningful involvement in the performance of the resultant contract. Since the agency’s evaluation and source selection decision concluded that none of the subcontractor’s experience was relevant, it was misleading for the agency to effectively direct Ebrex to “clearly demonstrate” the subcontractor’s “meaningful involvement” in contract performance.
EFS Ebrex SARL is represented by William E. Hughes of Husch Blackwell LLP. The government is represented by Katherine B. McCulloch, Defense Logistics Agency. The intervenors are represented by Michael J. Gardner of Greenberg Traurig, LLP, for Coastal Pacific Food Distributors Inc.; and by Robert E. Korroch, William A. Wozniak, and Shayn A. Fernandez of Williams Mullen, for Food Services Inc. GAO attorneys Glenn G. Wolcott and Christina Sklarew participated in the preparation of the decision.