Negotiated acquisitions

"Late Is Late" ... Especially with No Extension

In Lyons Security Services, Inc., (1) the General Accounting Office (GAO) found that the agency properly rejected the protestor's proposal as late, despite the protestor's assertion that the agency had extended the closing date. Under the request for proposals (RFP), the Department of State (DOS) sought to procure security guard services for the U.S. Embassy in Denmark and established 12 February 2002 as the due date for the submission of proposals. Lyons Security Services, Inc. (Lyons Security) submitted a proposal on 20 February, which the DOS rejected as late. Lyons Security challenged the agency's rejection of its proposal, claiming it had received Amendment Number 2 via E-mail, extending the due date for proposals until 22 February. (2)

In response to the protest, the contracting officer testified that he did not issue or authorize anyone else to issue another amendment. Additionally, he stated that he never considered issuing a second amendment or extending the closing date. For it part, the protestor produced no evidence to support its assertion, claiming it had deleted the E-mail notice of the amendment. (3) Unable to retrieve the E-mail, Lyons Security also could not provide the Internet site address of the alleged E-mail or the site from which it downloaded the supposed amendment. Finding no evidence in the record to support the protestor's claim, the GAO denied the protest. (4)

Is It a Technical Evaluation Factor or Not?

In A.I.A. Construzioni S.P.A, (5) the GAO ruled that failing to submit an Italian nulla osta certification statement with its proposal, as required by the RFP, did not render the awardee's proposal non-compliant because the RFP did not convert the requirement from a responsibility matter into a technical evaluation criteria. The RFP, for construction work at the naval air station in Sigonella, Italy, contemplated the award being made without discussions on a "lowest evaluated price" basis. (6) The RFP also notified offerors that they had to submit a nulla osta certification statement with their initial proposals. A nulla osta statement, issued by the Italian Chamber of Commerce as part of its certification, indicates the "named contractor has not violated Italian anti-mafia laws, and is eligible to perform on public contracts." (7)

Although Lotos Construzioni S.R.L. (Lotos) submitted the lowest-priced offer, its certification did not include the nulla osta statement. The Navy rejected the proposal and awarded to the protestor, A.I.A. Construzioni (AIA). In an agency-level protest, Lotos argued that it should have been allowed to submit the certification at any time before award. "The Navy agreed; deciding the anti-mafia certification was a matter of responsibility, and that it therefore could be submitted up until the time of award." (8) As a result, the Navy terminated the contract with AIA and awarded to Lotos. AIA protested the award decision. (9)

While the GAO noted that agencies may convert traditional responsibility criteria into technical evaluation criteria in negotiated procurements, it found nothing in this case to indicate that the Navy "intended to convert the nulla osta certification into a matter of technical acceptibility." (10) Indeed, the RFP specifically listed the certification, of which the nulla osta statement was a part, as "other information to be used in the determination of responsibility." (11) Consequently, the GAO concluded that the Navy had properly awarded the second contract to Lotos, notwithstanding the requirement that offerors submit the anti-Mafia certification with their initial proposals, because the RFP treated the nulla osta statement as information relating to responsibility. (12)

"Rough Floor Plan" Did Not Satisfy Solicitation's Requirements

In Marshall-Putnam Soil & Water Conservation District (Marshall-Putnam), (13) the GAO found that an offer that included a "rough floor plan" of the office space it proposed for lease--rather than the architectural elevation and landscape plans specified in the solicitation--was a nonconforming offer. As such, the GAO found that the offer was ineligible for award. In Marshall-Putnam, the protestor challenged the award of a U.S. Department of Agriculture (USDA) contract that leased office space from Henry Developers, Inc. (Henry Developers). The protestor claimed that Henry Developers' proposal did not conform to the terms of the USDA's solicitation for offers (SFO), (14) which required an architectural plan drawn to scale and elevation drawings. (15) The GAO agreed, noting that without the required information, the agency simply could not have known what it was getting. (16) Ultimately, the GAO said that the fundamental problem was that "the agency improperly made assumptions about the building that Henry proposed--and concluded that it not only satisfied the government's needs, but warranted a nearly perfect technical score--with no evidence before it of the actual features of the building being proposed." (17)

GAO and COFC Differ on Interpretation of Solicitation Provision

Reviewing the same facts arising out of the same Navy RFP, the GAO and the Court of Federal Claims (COFC) reached completely opposite conclusions. In Metcalf Construction Co., (18) the GAO ruled that the agency properly eliminated Metcalf Construction Company's (Metcalf) proposal from further consideration because its price for one line item exceeded the cost limitation set forth in the RFP. On appeal, however, the COFC found the solicitation provision addressing "cost limitations" ambiguous and determined that the Navy failed to treat all offerors fairly by not notifying all of them of the intended meaning of the provision. (19)

The facts of the case arose out of a Navy RFP for the design and construction of military family housing units at the Marine Corps Base in Kaneohe Bay, Hawaii. The solicitation schedule contained three separate line items--one Base and two Options--relating to three separate projects that spanned three separate fiscal years. Included in the RFP was a provision establishing "cost limitations" or a "budget ceiling" for the separate scheduled line items. (20) Three offerors submitted initial proposals before the RFP closing date--Metcalf, Lend Lease Actus, and an unnamed offeror (Offeror A). Following a round of discussions, the Navy requested final proposal revisions (FPR). A day after receipt of the FPRs, the Navy amended the RFP to include an updated Davis-Bacon Act wage determination, and as a result, a request for a second round of FPRs. In response, Metcalf submitted a final revised price for Option 0002 that exceeded the budget ceiling established in the RFP for that line item. The Navy then eliminated Metcalf's proposal from further consideration and ultimately awarded the contract to Lend Lease Actus, whose offer was technically equivalent but lower priced than Offeror A's. (21)

Metcalf first protested to the GAO, arguing that RFP Section 1.7A provided for the elimination of a proposal only when the total evaluated price exceeded the sum of the base item and both options. (22) In support of its interpretation, Metcalf noted the RFP's singular language (i.e., "this amount," instead of "these amounts," and "the cost limitation," instead of "the cost limitations") concerning the budget ceilings. (23) In an attempt to bolster the reasonableness of its interpretation, Metcalf contended that Offeror A interpreted the same language under section 1.7A similarly, and that an agency contract specialist "acknowledged the reasonableness of this interpretation." (24)

While recognizing "that the language of section 1A.7 is somewhat confusing," the GAO nevertheless concluded "that the provision is susceptible of only one reasonable interpretation: it imposes a separate budget ceiling on each line item and excludes from consideration any proposal offering a price in excess of any of the budget ceilings." (25) In reaching its conclusion, the GAO cited the RFP's separate listing of each of the budget ceilings for the three line items. It also noted that because the initial award price covered only the base item work, the instruction to prepare proposals to permit award at a price within the budget ceiling "makes sense only if the solicitation is interpreted as imposing separate line item cost limitations." (26)

The GAO also rejected Metcalf's argument that Offeror A and an agency contract specialist had similarly misinterpreted Section lA.7. The GAO determined that the issue Offeror A raised actually related to the language in Section lB.8, (27) which the Navy had recognized as susceptible to misinterpretation. The Navy, however, amended this language before Metcalf submitted the FPR that contained the price in excess of the established budget ceiling for the line item. (28)

The GAO also rejected Metcalf's arguments that the agency should have reopened discussions to allow it to revise its price for Option 0002, and that the Navy conducted "unequal discussions" by informing Offeror A to review its prices to ensure it did not violate the ceilings on the separate line items without doing the same for Metcalf. (29) Recognizing that the decision to reopen discussions falls within the discretion of the contracting officer, the GAO found that the contracting officer did not abuse her discretion, noting that the agency had "already gone through two rounds of FPRs, and we see no basis to require the reopening of discussions here." (30) Further, while the Navy informed Offeror A that two of its prices exceeded the budget ceilings during the initial round of discussions, Metcalf's prices at that time were all under the limitations and therefore there "simply was no reason for the agency to reiterate this requirement or otherwise to discuss budget ceilings during discussions with Metcalf." (31)

Unhappy with the GAO's conclusions and the denial of its protest, Metcalf filed suit at the COFC, advancing very similar arguments, but with very different results. The court noted that while the COFC is not bound by GAO decisions, it generally grants some deference to the GAO's opinions. In this case, however, the court elected not to defer to the GAO because the contract interpretation matter in issue "is a question of law for the court to decide" and "the GAO's finding in favor of the Navy is unsupported on this record." (32)

Applying the "well-established" rules of contract interpretation, the COFC determined that the RFP's language at Section 1A.7 created a patent ambiguity. The court concluded that the Navy, having notice of the defect, failed to inform all offerors of the ambiguity adequately. (33) The court based its finding of an ambiguity on a "probative" comment by the contract specialist in the memo to the SSB, that the language at Section lB.8 "could be construed as a 'total' budget ceiling vice an individual line item budget ceiling." (34) Referencing the contract interpretation rule that the plain and ordinary meaning of a contract must produce an interpretation "that would be derived 'by a reasonably intelligent person acquainted with the contemporary circumstances,'" (35) and assuming that the contract specialist was such a person, the court stated that "the concept of res ipsa loquitor, by analogy, concludes our analysis." (36) In addition to the contract specialist's comments, the court found "an obvious inconsistency" in Section 1A.7 where the agency used singular language (e.g., "budget ceiling," "this amount," and "cost limitation"), but listed the three different line items separately. (37)

Finding the contract language patently ambiguous, the COFC next determined that the Navy had notice of the ambiguity both before the closing date, by way of Offeror A's question about "how the budget items were to be construed," and later, when Offeror A submitted its initial proposal with prices that exceeded two separate budget ceilings. (38) Looking to Federal Acquisition Regulation (FAR) section 14.208(c) (39) for guidance, the court concluded that while the Navy "clearly and distinctly" instructed Offeror A of its interpretation of the ambiguous provision during the first round of discussions, it did not dot same for the other bidders." (40)

The court also concluded that the Navy treated offerors unfairly when, after the receipt of the initial proposals, it specifically informed Offeror A not to exceed the budget ceilings, but simply eliminated Metcalf from further consideration when its final proposal included a price above the budget ceiling. (41) Dismissing the Navy's claim that the contracting officer reasonably concluded that yet another round of discussions was unnecessary, the court stated that "one more clarifying statement would have only enhanced the quality of the procurement process, and served the interest of (1) fairness, when another bidder had received a prior warning, and (2) competition, when there were only a total of three bidders under consideration." (42) The COFC, concluding that the Navy unreasonably excluded Metcalf's proposal from further consideration, stated that while Offeror A "received only a hospitable warning when it exceeded two of the budget ceilings, ... Metcalf was held to the strict letter of the [Navy's interpretation of the] solicitation." (43)

While It May Be an E-Mail, It's Still "Informal Advice"

While oral advice that conflicts with an agency solicitation does not bind the government, (44) until this past year, neither the GAO nor the COFC had determined whether government E-mail advice binds an agency. In Diamond Aircraft Industries, Inc. (Diamond Aircraft), (45) the GAO determined that even if the agency E-mails the informal advice, the result is the same--an offeror relies upon such agency advice at its own risk, and it does not bind the government. In Diamond Aircraft, the Air Force issued an RFP for motorized gliders, spare parts, and support equipment. In a commercial item acquisition that provided for the selection of the lowest priced technically acceptable proposal, the solicitation stated that the agency would evaluate the motorized gliders on a pass-fail basis, depending upon their ability to satisfy fourteen minimum requirements. (46) In evaluating Diamond Aircraft's proposal, the Air Force determined that the offered motorized glider, powered by a 100-horsepower (hp) engine, failed to meet five of the minimum requirements; the Air Force thus rejected the proposal. (47)

Diamond Aircraft alleged that the Air Force misled it into submitting a technically unacceptable proposal. At the time the Air Force issued the RFP, Diamond Aircraft manufactured a motorized glider with an 81-hp engine, which met all of the solicitation's minimum technical requirements. Diamond Aircraft, however, was in the process of upgrading the glider to add a, 100-hp engine. Because the commercial item solicitation required the glider to meet the specified minimum requirements, and because the 100-hp glider was not certified or in production, Diamond Aircraft E-mailed the Air Force and asked whether it should submit alternative offers. According to Diamond Aircraft, the Air Force's E-mail response "advised that the 100-hp version would be acceptable, and instructed it to submit only one offer, for the 100-hp version." (48)

The GAO noted the general rule that oral advice that conflicts with the solicitation is not binding on the government. Because the solicitation notified offerors that proposals would be evaluated against "specific requirements," the GAO ruled that while the Air Force response to Diamond Aircraft's query was in the form of an E-mail, "[n]o informal advice--oral, or otherwise--could change this basis for evaluation, since the advice would not amend the solicitation." (49) The GAO advised Diamond Aircraft that instead of relying upon the Air Force's E-mail advice, it should have requested an amendment to the solicitation if it believed the RFP required clarification, so that all offerors could compete equally. (50)

CAFC Adds Voice to "Cost" Discussions

The Court of Appeals for the Federal Circuit (CAFC) added its voice to the GAO's (51) and ruled that FAR section 15.306(d)(3) (52) does not automatically require a contracting officer to enter into cost discussions with offerors whose cost proposals the agency deems adequate. In JWK International Corp. v. United States, (53) the Navy issued an RFP for supply acquisition logistics management integration services. The RFP listed the evaluation factors as technical, management, past performance, and cost, with cost being the least important evaluation criterion. Following the receipt of initial proposals, the Navy entered into discussions with the only two firms to submit offers--JWK International Corp. (JWK), the incumbent, and LTM Incorporated (LTM), the eventual awardee. While the Navy discussed the weaknesses in their proposals with both bidders, the Navy did not discuss cost with either party because both received an "adequate" rating with respect to cost. (54)

After receiving and evaluating the revised proposals, the Navy awarded the contract to the higher priced offeror, LTM, based on LTM's superior non-cost factor ratings. JWK sued in the COFC, which granted the government's summary judgment motion and rejected JWK's argument that the Navy had failed to engage in "meaningful discussions" when it did not discuss cost. (55)

On appeal, JWK argued that FAR section 15.306(d)(3) required the Navy to hold cost discussions, even though the cost of the proposal was not a significant weakness or deficiency because cost is always a material factor, and adjusting cost will "always materially enhance a proposal's potential for award." (56) The CAFC, however, agreed with the COFC and rejected JWK's argument. The CAFC began by explaining that agencies determine the relative importance of the cost and non-cost evaluation factors in a solicitation. Under the current RFP, the CAFC noted, the Navy decided that the non-cost factors, when combined, were significantly more important than cost. Because agencies must consider both non-cost and cost factors and have the discretion to rank their relative importance, the CAFC continued, "a downward adjustment may not always affect award." (57) The court further observed that under FAR section 15.306(d)(3), the determination of whether to hold discussions falls within the contracting officer's discretion. In fact, "aside from areas of significant weakness or deficiency, the contracting officer need not discuss areas in which a proposal may merely be improved." (58) Here, since the contracting officer determined that JWK's (and LTM's) cost proposal was acceptable (and not an area of weakness) the Navy was not required to include cost in its discussions. (59)

FAR Change "to Clarify" Mandatory Discussions

A final rule, effective 19 February 2002, amended FAR section 15.306(d) to "clarify" that contracting officers are "not required to discuss every area where the proposal could be improved." (60) Under the amended language, contracting officers "must ... discuss ... deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had the opportunity to respond." (61) The previous rule also required contracting officers to discuss "other aspects of the offeror's proposal" that could be "altered or explained to materially enhance the proposal's potential for award." (62) By way of contrast, the new rule merely "encourages" contracting officers to discuss such matters, making it "clear that whether these discussions would be worthwhile is within the contracting officer's decision." (63)

Call It What You Want, but It's Still "Discussion"

In determining whether an agency has engaged in "discussions" with an offeror, the GAO continues to focus on whether the offeror had an opportunity to revise its proposal; the characterization an agency attaches to the communication is irrelevant. In Priority One Services, Inc., (64) the protestor challenged the award of a National Institute of Allergy and Infectious Disease (NIAID) contract to SoBran Incorporated (SoBran), under an RFP for the care, treatment, and other technical skills related to the scientific study of animals. The solicitation contemplated a cost-plus-fixed-fee contract and provided that award would be made based on the "best overall value" to the government, with all non-cost-evaluation factors, when combined, being significantly more important than price. (65)

Following written discussions and evaluation of the FPRs, the evaluation team decided to award to SoBran. But before the evaluation team completed a formal written recommendation, it requested "further clarification/information from SoBran." (66) In a subsequent telephone call to SoBran that the source selection document characterized as a "[c]larification," (67) the agency questioned the availability of certain key personnel, as well as the proposed salaries for the quality assurance trainers. SoBran responded by revising its technical and price proposal, which resulted in an increase in its proposed costs. (68) After receiving this information, the NIAID awarded the contract to SoBran. (69)

The protestor claimed that the NIAID's communications with SoBran after tentative selection constituted "discussions," requiring discussions with all offerors remaining in the competitive range. (70) The GAO agreed, declaring that the parties' actions, not the agency's characterization, control the determination of whether they have held discussions. Applying what it termed the "acid test" for determining whether an agency's communications constitute "discussions," (71) the GAO found that the communications here were in fact "discussions." (72) To the GAO, it was clear that the NIAID had afforded SoBran the opportunity to revise its technical and cost proposals in response to the NIAID's concerns and questions after the receipt of the FPRs; therefore, the communications constituted discussions. (73)

Submission of Omitted Proposal Information Not a Clarification

In eMind, (74) the GAO held that the submission of omitted information after the closing date for the receipt of proposals is not an allowable clarification when the omitted information is necessary to determine the technical acceptability of the proposal. The basis for eMind's protest was the rejection of its proposal as technically unacceptable under an Internal Revenue Service (IRS) RFP for off-the-shelf computer-based tax law and accounting courses. The solicitation instructed offerors to submit course descriptions for the courses identified in the schedule, which the agency would use to determine the technical acceptability of proposals. The RFP also advised offerors that the agency intended to award without discussions. (75)

After the closing date for proposals, the contracting officer contacted eMind by telephone to inform it that some of the course names eMind had provided in its schedule did not match the names in the proposal's course catalog section. In an E-mail response, eMind furnished the correct course names. In a subsequent E-mail that same day, eMind provided six course descriptions that it had omitted from its proposal. (76)

During the evaluation phase, the agency evaluation team gave eMind's technical proposal a "fail" rating for the most important technical factor, "Fulfillment of Statement of Work Minimum Requirements." (77) Because eMind's proposal omitted course descriptions for thirteen line items, the evaluators could not determine if eMind's proposed courses satisfied the RFP's minimum requirements. While eMind had provided six additional course descriptions via E-mail, the evaluators determined that consideration of these descriptions would be improper because the agency received them after the RFP's closing date. (78) The team also determined that the majority of descriptions provided failed to meet the RFP's requirements. The agency found eMind's and a third proposal technically unacceptable and awarded to MicroMash. (79)

In its protest, eMind claimed that the IRS should have considered the course descriptions it had submitted via E-mail, arguing that this information was "an allowable clarification of its proposal since the course descriptions were taken directly from its website and were not developed or modified after the proposal closing date." (80) The GAO disagreed. Referencing the FAR's definition of "clarifications," (81) the GAO firmly stated that clarifications "may not be used to furnish information required to determine the technical acceptability of a proposal." (82) Because agencies can only evaluate offers based on the information actually provided in a proposal, the GAO rejected eMind's suggestion that the IRS was somehow put on notice of its capabilities because its course descriptions were on its Web site. Furthermore, there was nothing in eMind's proposal suggesting that the Web site course descriptions were incorporated by reference. (83)

GAO Finds Unequal Treatment in Past Performance Trade-Off Decision

In late 2001, the GAO found an award decision unreasonable, based on the agency's unequal treatment in assessing the past performance of the protestor and the awardee. In Myers Investigative & Security Services, Inc., (84) the protestor challenged the award of a General Services Administration (GSA) ten-month interim contract (85) for security guard services to Industrial Loss Prevention, Inc. (ILP). The RFP contemplated the award on a "best value to the Government" basis and included "past performance" as one of two technical factors that, when combined, were more important than price. (86) Concerning past performance, the RFP required offerors to submit references for all current security guard service contracts as well as for any similarly sized contracts performed within the previous five years. The RFP also provided that such information and any other past performance information known to the agency would form the basis for the agency's evaluation. (87)

Assessing the past performance of all offerors, the Source Selection Technical Evaluation Board (SSTEB) gave ILP the highest past performance ranking, while Myers Investigative and Security Services, Inc. (Myers) received the third-highest rating. Although ILP had the third-highest priced proposal and Myers had the lowest overall price, the SSTEB recommended award to ILP based on its superior past performance. (88) Myers protested, arguing that the agency's past performance evaluation was unreasonable and unfair. (89)

The GAO agreed with Myers, sustaining the protest and finding several problems in the past performance evaluation and selection procedures. First, the underlying reference responses failed to support numerous conclusions in the SSTEB Report. (90) Second, the source selection decision varied from the evaluation scheme contemplated in the RFP. Specifically, while the RFP advised offerors that the agency would consider any information on any guard services performed in the past five years, that information "played no discernable role in the selection decision." (91) Instead, the SSTEB's selection recommendation considered only information from Myers's and ILP's prior contracts with the GSA. Finally, and most importantly, the GAO found that the SSTEB's past performance evaluation treated Myers and ILP unequally, given the similarities in the underlying information upon which the agency ultimately based its conclusions. (92) For example, while each firm had a similar number of complaints about tardy guards and guards abandoning their posts, the GSA ranked Myers's past performance significantly lower than ILP's. (93) Given this unequal treatment, and in light of the other problems identified, the GAO found the evaluation unreasonable and sustained the protest. (94)

Contractor with Relevant Past Performance That Is Unavailable Gets "Neutral" Rating

In Chicataw Construction, Inc., (95) the GAO approved the contracting officer's decision to give a "neutral" rating to an offeror that had some past performance information, but not as much as the solicitation requested. The GSA had sought offers for the replacement of a cooling tower in a federal building. The solicitation advised that the award would be on a "best value" basis, considering price and past performance. It stated that the two factors were about equal in weight, but that as proposals became more equal in past performance, the agency would give price greater weight. Concerning past performance, the GSA apparently wanted a minimum of three references for work completed as a prime contractor within the previous five years. (96)

Chicataw Construction, Inc. (Chicataw) submitted five references with its proposal, but the GSA only scored two of the references provided. The contracting officer excluded two of the references because one was too stale and the other was for work as a subcontractor. The contracting officer did not consider the third reference because the contracting officer was unable to make contact with the reference, despite repeated attempts. The agency scored Chicataw's other two references at 4.75 and 3.5 on a five-point scale. Because the solicitation required a minimum of three references and Chicataw did not identify an additional reference, the contracting officer averaged the two ratings with a third score of zero, resulting in an overall past performance score of 2.75. (97) Although Chicataw offered the lowest overall price, the contracting officer determined that it did not offer the "best value" to the government given its significantly lower past performance rating. (98)

In a supplemental report following Chicataw's initial protest, the GSA recognized errors in the evaluation process and recalculated Chicataw's past performance rating, substituting a "neutral" rating of 2.5 for the previous score of zero. This resulted in a new overall average of 3.58 for Chicataw. (99) Nevertheless, the contracting officer determined that the original awardee, Hammond Corporation, represented the "best value" to the government, based on its slightly higher price but significantly higher past performance rating of 4.96. (100)

Challenging the agency's evaluation of its past performance, Chicataw argued that the GSA violated FAR section 15.305(a)(2)(iv) (101) by initially giving it a zero rating for the unavailable project reference. While the GAO stated that it was "not entirely clear" whether FAR section 15.305(a)(2)(iv) applied in a case where the protestor had provided some--but not all--the past performance information requested, the GAO disagreed with Chicataw's contention. The GAO found nothing "unreasonable" in the GSA's use of this principle when it recalculated Chicataw's past performance rating using a "neutral" rating of 2.5 for the unavailable reference. (102)

Chicataw further asserted that the GAO should give "little deference" to the agency's revised evaluation under the Boeing Sikorsky Aircraft Support (103) line of cases. (104) Contrasting the agency's reevaluation here with that in Boeing Sikorsky, the GAO held that the GSA's reevaluation was "less a matter of judgment, and more a matter of mathematics." (105) Here, the agency properly determined that the initial zero rating was inappropriate, assigned a "neutral" rating for the unavailable reference, and then recalculated the average past performance score--"a straightforward computation that raises fewer concerns than when we might have when an agency is revisiting matters that are entirely discretionary." (106)

Be Careful How You Evaluate

In Gemmo Impianti SpA, (107) the GAO sustained a protest when it found material defects in the agency's evaluation of two of the solicitation's three technical factors, as well as an erroneous assumption concerning the difference in price between proposals during the cost-technical tradeoff analysis. (108) Under the terms of the RFP, the Navy contemplated award of a contract for various installation services in Naples, Italy, based on a "best value determination." (109) The RFP also listed three technical factors--past performance, corporate capability, and quality control--which when combined were of equal importance to price. After evaluating the proposals, the source selection board (SSB) summarized the evaluation team's findings. The SSB noted the extensive experience of Penaullie Italia SpA (Penaullie) and the "superior" ratings it received from references, including two based on major contracts in Paris, France. (110) Additionally, the SSB noted that Penauille's proposal included a "highly detailed" quality control plan and increased staffing, compared to the protestor's plan, which "appear[ed] minimal." (111) The SSB assigned a quantitative value to the benefit of Penaullie's increased staffing and subtracted the cost of the additional staffing from the price difference between the higher priced Penuallie proposal and that of the protestor. Based on this analysis, the SSB determined that the actual price difference between the two proposals was only "marginal," and concluded that Penaullie's "superior" proposal represented the best value to the government. (112)

The GAO agreed with the protestor that the evaluation and source selection decision were unreasonable and unfair. First, under the past performance factor, the GAO found the Navy improperly credited Penauille with performance of the two Paris contracts, when in fact it had been performed by a different corporate entity of a shared corporate parent. (113) In determining whether to attribute such past performance, the GAO stated the "affiliation" is not the only consideration, "but also the nature and extent of the relationship between the two--in particular, whether the proposal demonstrates that the workforce, management, facilities, or other resources of the affiliate may affect contract performance by the offeror." (114) While Penauille claimed that it shared top-level management personnel with its affiliate, its proposal made no mention of the personnel involvement on the contract and thus provided no basis for the Navy to consider the affiliate's past performance. (115)

The GAO also took issue with the agency's evaluation of the quality control factor. While the GAO agreed that Penaullie proposed using twice the number of quality control personnel as the protestor, it found that Penaullie's representatives devoted only fifty percent of their time to quality control, while the protestor's quality control representatives generally worked full-time. Thus, the actual difference in total labor hours was far less significant than the agency's assessment had reflected. (116) Finally, the GAO found the agency's calculation deducting the salaries of the increased number of quality control representatives under Penaullie's proposal to be "defective." (117) Because Penauille did not propose to provide quality control at no cost, there was no basis to deduct such costs to determine that the protestor's price was "only marginally" lower than Penaullie's. (118)

Generalized Conclusions Are Not Enough; Give Some Analysis

In Johnson Controls World Services, Inc., (119) the protestor successfully challenged a "best value" award decision where the agency failed to provide adequate information and analysis in its contemporaneous source selection decision and in a post-protest amendment to the decision. In Johnson Controls, the National Aeronautics and Space Administration (NASA) issued an RFP for a variety of support services at the Johnson Space Center. The RFP provided two non-cost factors--mission suitability and past performance--which, when combined, were about equal to cost. (120)

Following discussions and the receipt of final proposals, the source evaluation board's (SEB) final evaluation scored the protestor's proposal "significantly higher" than the eventual awardee, DynCorp Technical Services, Ltd. (DynCorp), but at a "somewhat higher probable cost/price." (121) Focusing primarily on cost, the SEB's final report contained "no comparative analysis of offerors' relative strengths" under the non-cost factors. (122) Similarly, when briefing the source selection authority (SSA), the SEB's charts contained no comparative analysis, nor was there any additional evidence of the contents or discussions of the meeting. The SSA's source selection document merely concluded "without elaboration" that DynCorp's proposal represented the "best value" to the government, as there were no "discernable benefits" in the other proposals that outweighed DynCorp's "significant advantage" in lower cost. (123) The agency awarded the contract to DynCorp; Johnson Controls Worldwide Services (JCWS) protested. In response to this initial protest, NASA recognized that it had not recorded the "contemporaneous inquiries, judgments, tradeoffs and reasons" for the SSA's decision and filed an "addendum" to correct the omissions. (124)

The GAO, in reviewing whether the SSA's decision was reasonable, consistent with the RFP's evaluation criteria, and adequately documented, (125) stated that the SSA's contemporaneous documentation was "devoid of any substantive consideration as to whether JCWS's proposal was a better value to the government than DynCorp's lower-rated, lower-priced proposal." (126) The SSA's "generalized statements" that there were "no discernable benefits" in other proposals that outweighed the "significant advantage" of DynCorp's lower-rated and lower-priced proposal "fall far short of the requirement to justify cost/technical tradeoff decisions." (127)

Even after "giving full consideration" to NASA's post-protest "addendum" to the SSA's decision, (128) the GAO still concluded that there was "insufficient information and analysis in the record for [the GAO] to determine that the award selection was reasonable." (129) Citing the SSA's "reliance on an overly mechanistic methodology" when comparing past performance the GAO stated that "his failure to consider the qualitative differences" between the proposals and' his failure to explain why he found no risk in awarding to DynCorp" despite the SEB s risk assessment concerning a DynCorp subcontractor, was an unreasonable "conclusion of equivalence." (130)

Don't Be "Mechanical" with Trade-Off Decisions, Either

In Shumaker Trucking & Excavating Contractors, Inc., the GAO sustained another protest, finding that the agency's award decision was unreasonable where the "agency mechanically applied the solicitation's evaluation methodology." (131) The U.S. Department of Agriculture's (USDA) solicitation for the consolidation and capping of mine waste on a Montana reclamation project established four technical factors of varying importance, which, when combined, were equal to price in importance. The RFP further provided that the award would be made to the offeror "'(1) whose proposal is technically acceptable; and (2) whose technical/cost relationship is the most advantageous to the Government.'" (132)

Although URS Group's (URS) proposal was for $400,000 more than the protestor's offer, the technical evaluation panel (TEP) and the contracting officer recommended award to URS, "concluding the difference in technical scores between URS and Shumaker justified the higher price." (133) The SSA adopted the contracting officer's recommendation without additional comment. (134) Shumaker protested the award, challenging the adequacy of the agency's explanation of its cost-technical trade-off decision. (135)

While the RFP correctly stated the standard for the cost-technical trade off decision, (136) the GAO found that the agency's "focal point" in its cost-technical trade-off analysis (137) was "URS's higher technical point score, without discussing what, if anything, the spread between the technical scores ... actually signified." (138) Moreover, there was no analysis comparing the advantages in URS's proposal to those of Shumaker's proposal, or consideration of "why any advantages of URS's proposal were worth the approximately $400,000 higher price." (139) Stating again that "point scores are but guides to intelligent decision making," (140) the GAO found the agency's cost-technical trade off decision "inadequate ... because its mechanical comparison of the offerors' point scores was not a valid substitute for a qualitative assessment of the technical differences ... so as to determine whether URS's technical superiority justified the price premium involved." (141)

SSAs May Disagree with Evaluator Conclusions ... Just Be Reasonable About It

While SSAs may disagree with evaluators' conclusions, (142) they must still be reasonable when doing so, and ensure that they adequately support their source selection decisions. In DynCorp International LLC, (143) the U.S. Army Corps of Engineers issued an RFP for base operation support services at Camp As Sayliyah, Qatar. The solicitation informed potential offerors that the agency would award based on the "best value" to the government, considering price and non-price related factors. (144) The technical evaluation team (TET) and the cost evaluation team (CET) reviewed the proposals. Both identified concerns about the proposal of the eventual awardee, ITT Federal Services International Corporation (ITT). The TET was primarily concerned with ITT's proposed staffing levels and identified a performance risk based on ITT's plan to expand its workforce only after contract award, (145) The CET also had concerns about ITT's proposed staffing levels, and found ITT's cost proposal information incomplete. (146) After receiving the TET and CET reports, the SSA disagreed with certain conclusions of the evaluators and determined that ITT's proposal represented the best overall value to the government. (147)

The protestor challenged the SSA's decision as unreasonable; the GAO agreed. Reviewing the SSA's decision for reasonableness, consistency with the evaluation factors, and adequacy of documentation, (148) the GAO found that the record provided no support for "questioning the weaknesses identified by the TET (and CET) relating to the adequacy of ITT's proposed staffing." (149) The GAO also failed to see any reasonable basis for "discounting" the performance risks the TET identified, or the CET's determination that ITT's cost proposal information was incomplete. (150) The GAO also found that the SSA engaged in "disparate treatment" by assigning a "high-performance risk" rating to the protestor's cost proposal based on low proposed hourly labor rates, but did not do the same for ITT, which proposed similarly low labor rates. (151)

Don't Forget About Cost/Price

In A&D Fire Protection Inc. (A&D Fire Protection I), (152) the GAO reminded all agencies to consider cost or price to the government when they evaluate competitive proposals. In A&D Fire Protection I, the Department of Veterans Affairs (VA) issued an RFP for design and construction services at the National Cemetery in San Diego, California. The RFP listed four evaluation factors in descending order of importance: price, construction management experience, past performance, and schedule. Of the six offers the VA received, A&D Fire Protection Inc. (A&D) offered the lowest overall price. (153) The VA, however, eliminated A&D's proposal from the competition without further consideration because the agency determined that it was not "sufficiently technically capable to perform the project." (154) The GAO opinion stated that every RFP must include cost or price to the government, and that agencies must always consider cost or price when evaluating proposals. The GAO added that "the elimination of technically acceptable proposals without meaningful consideration of price is inconsistent with the agency's obligation to evaluate proposals under all of the solicitation's criteria, including price." (155)

If at First You Don't Succeed, Try Again ... and Then Again

The VA followed the GAO's recommendation in A&D Fire Protection I, and conducted a new cost-technical tradeoff analysis in accordance with the terms of the RFP. The VA's results, however, were much the same. In A&D Fire Protection Inc. (A&D Fire Protection II), (156) the VA determined that the proposal of the original awardee, Stronghold Engineering, Inc. (Stronghold), represented the "best value" to the government because cost savings associated with Stronghold's technical advantages offset A&D's price advantage. (157) More specifically, the VA concluded that Stronghold's proposal intended to shorten the completion schedule for the project by up to sixty-five days, which the VA determined would result in significant cost savings to the agency. A&D once again challenged the VA's decision, asserting that Stronghold offered "no commitment," but only an "attempt" to complete the project in less time than the solicitation required. (158) The GAO again agreed with A&D, finding that the VA erroneously concluded that Stronghold offered a shorter performance schedule. Reviewing the language of Stronghold's proposal, the GAO sustained the protest, determining that "Stronghold's 'intention' and 'belief' that it could complete the contract work sooner than the minimum 420-day completion schedule required by the RFP is not the contractual commitment that the solicitation required to receive additional evaluation credit for an accelerated schedule." (159) Major Huyser.

(1.) Comp. Gen. B-289974, May 13, 2002, 2002 CPD [paragraph] 84.

(2.) Id. at 2.

(3.) Id. at 1. The contracting officer did post agency responses to offerors' questions and an Amendment Number 1, which corrected a clerical error to the Federal Business Opportunities and Statebuy Internet sites. Id.

(4.) Id. at 2. Testimony also established that the contracting officer does not actually post solicitations or amendments to the Internet; only persons within the agency's Office of Procurement Executive have the necessary passwords to post them. Individuals from that office similarly testified that no one from that office had been authorized to post an Amendment Number 2, nor did they post one. Id.

(5.) Comp. Gen. B-289870, Apr. 24, 2002, 2002 CPD [paragraph] 71.

(6.) Id. at 1.

(7.) Id. at 1-2.

(8.) Id. at 2.

(9.) Id.

(10.) Id. (citing McLaughlin Research Corp., Comp. Gen. B-247118, May 5, 1992, 92-1 CPD [paragraph] 422, at 4).

(11.) Id. (citing section 18 of the RFP, at 201-6(a)).

(12.) Id. at 2-3.

(13.) Comp. Gen. B-289949, B-289949.2, May 29, 2002, 2002 CPD [paragraph] 90.

(14.) Id. at 4-5. The GAO noted that while both the agency and protestor used the terms "bid" and "nonresponsive" in reference to the SFO at issue, the SFO was essentially an RFP and the GAO applied the standards applicable to negotiated procurements. Id.

(15.) Id. at 3.

(16.) Id. at 6.

(17.) Id. at 7. The GAO recommended that the agency hold discussions, request revised proposals from Henry Developers and the protestor, revaluate the proposals, and make a new source selection decision based on the reevaluation. Id. at 8.

(18). Comp. Gen. B-289199, Jan. 14, 2002, 2002 CPD [paragraph] 31.

(19). Metcalf Constr. Co. v. United States, 53 Fed. Cl. 617, 629-30 (2002).

(20.) Metcalf Constr., 2002 CPD [paragraph] 31, at 2. Specifically, the provision stated:

1A.7 INFORMATION CONCERNING COST LIMITATIONS: The budget ceiling for the award of this contract is as follows:

Base Item: $7,3000,000 for Project H-570 (30 units)

Option 0001: $35,780,000 for Project H-571 (158 units)

Option 0002: $5,400,000 for projects H-571 and H-563 (24 units)

Proposals in excess of this amount will not be considered. Offerors should prepare their proposals so as to permit award at a price within the cost limitation.

Id.

(21). Id. at 3.

(22). Id. at 3-4.

(23). Id. at 4.

(24). Id.

(25). Id.

(26). Id.

(27.) Id. at 2. Section 1B.8, concerning the evaluation of prices, provided in part: "For award purposes, the price for pre-priced Options 0001 and 0002 will be added to the Item 0001 price." Id.

(28.) Id. at 4-5. In the contracting specialist's view, the language of Section lB.8 "could be construed as a 'total' budget ceiling [rather than] an individual line item budget ceiling." Id. at 4 (quoting a 4 June 2001 memorandum from the contract specialist to the Source Selection Board). As a result, the contracting specialist recommended the inclusion of Offeror A in the competitive range and the amendment of RFP's Section 1B.8, to substitute the word "evaluation" for "award." Id. at 4-5.

(29.) Id. at 5.

(30.) Id. (citing Mine Safety Appliances Co., Comp. Gen. B-242379.5, Aug. 6, 1992, 92-2 CPD [paragraph] 76, at 6).

(31.) Id.

(32.) Metcalf Constr Co. v. United States, 53 Fed. Cl. 617, 626 n.17 (2002) (citing E.W. Bliss Co. v. United States, 33 Fed. Cl. 123, 134 (1995), aff'd, 77 F. 3d 445 (Fed. Cir. 1996)).

(33). Id. at 629-30.

(34). Id. at 629.

(35.) Id. at 628 (quoting Rice Lake Contracting, Inc. v. United States, 33 Fed. Cl. 144, 152 (1995)).

(36). Id. at 630.

(37.) Id. The court also had some rather harsh words for the GAO's earlier decision: "What is utterly perplexing to this court is the fact the GAO found that: 'While [it] recognize[s] that the language of section 1A.7 is somewhat confusing, [it] nonetheless think[s] that the provision is susceptible of only one reasonable interpretation....' To so conclude, in this court's view, strains credulity." Id.

(38.) Id. at 631.

(39.) The FAR states:

   [A]ny information given to a prospective bidder concerning an
   invitation for bids shall be furnished promptly to all other
   prospective bidders as an amendment.... No award shall be made
   on the invitation unless such amendment has been issued in
   sufficient time to permit all prospective bidders to consider such
   information in submitting or modifying their bids.

GENERAL SERVS. ADMIN. ET AL., FEDERAL ACQUISITION REG. 14.208(c) (July 2002) [hereinafter FAR].

(40.) Metcalf Constr. Co., 53 Fed. Cl. at 632.

(41.) Id. at 634-35.

(42.) Id. at 635.

(43.) Id. at 643. While the GAO did not address the issue, the COFC also found that the Navy acted arbitrarily when it ranked Metcalf third technically among the three proposals. Although each of the proposals received the same adjectival rating ("acceptable"), the Navy ranked Metcalf third due to certain advantages in the other proposals. While recognizing that proposals with the same adjectival rating are not necessarily of equal quality, and that an agency may consider specific advantages, the court nevertheless found no "comparative weaknesses" between the proposals in the record as the Navy claimed. Id. at 641. Finding that Metcalf met the showings for permanent injunctive relief, the COFC declared the Navy's contract with Land Lease Actus null and void and permanently restrained and enjoined further performance under the contract. The COFC further ordered the reinstatement of Metcalf in the competitive range, the amendment of the solicitation to clarify Section 1A.7, the re-submission of final proposals, and re-evaluation consistent with the court's findings. Id. at 646.

(44.) See, e.g., Input/Output Tech., Inc., B-280585, B-280585.2, Oct. 21, 1998, 98-2 CPD [paragraph] 131.

(45). Comp. Gen. B-289309, Feb. 4, 2002, 2002 CPD [paragraph] 35.

(46). Id. at 1.

(47). Id. at 2.

(48). Id.

(49). Id. (citing Input/Output, 98-2 CPD [paragraph] 131, at 5).

(50.) Id. In addition to concluding that the informal E-mail advice provided no basis for reopening the competition, the GAO disagreed with Diamond Aircraft's interpretation of the Air Force's advice. Reviewing the text of the E-mails in question, the GAO could find no references to the technical acceptability of the 100-hp engine--the E-mails referred only to whether the 100-hp version "would be considered to be a commercial item." Id. at 3.

(51.) See, e.g., SOS Interpreting, Ltd., Comp. Gen. B-287477.2, May 16, 2001, 2001 CPD [paragraph] 84 (holding that the agency was not required to discuss price when it did not consider price to be a significant weakness).

(52.) At the time of the appeal, FAR section 15.306(d)(3) stated:

   The contracting officer shall ... discuss with, each offeror still
   being considered for award, significant weaknesses, deficiencies,
   and other aspects of its proposal (such as cost, price, technical
   approach, past performance, and terms and conditions) that could, in
   the opinion of the contracting officer, be altered or explained to
   enhance materially the proposal's potential for award. The scope and
   extent of discussions are a matter of contracting officer judgment.

GENERAL SERVS. ADMIN. ET AL., FEDERAL ACQUISITION REG. 15.306(d) (June 2001) [hereinafter 2001 FAR].

(53.) 279 F.3d 985 (Fed. Cir. 2002).

(54). Id. at 987.

(55). See JWK Int'l Corp. v. United States, 49 Fed. Cl. 364, 367 (2001).

(56). JWK, 279 F. 3d at 987-88.

(57). Id. at 988.

(58). Id.

(59.) Id. The CAFC added that to prevail in its bid protest, JWK had to show that the Navy's failure to conduct a cost discussion was a significant error that prejudiced award. Despite JWK's argument that had the contracting officer discussed price, it could have adjusted its proposal and offered a lower price, the CAFC again noted that cost was the least important criterion. The CAFC added that JWK's proposed costs were already lower than the awardee's and that the contracting officer had determined that LTM's superior non-cost ratings outweighed the slight cost difference between the two proposals. Id.

(60.) Federal Acquisition Regulation; Discussion Requirements, 66 Fed. Reg. 65,368 (Dec. 18, 2001) (codified at 48 C.F.R. pt. 15 (2002)); see Ralph C. Nash & John Cibinic, Postscript IV: Negotiation in a Competitive Situation, 16 NASH & CIBINIC REP. 2, [paragraph] 8 (2002) (providing a brief but "meaningful" discussion of the history of FAR section 15.306(d), GAO decisions concerning the scope of discussions, and the impact of the most recent change).

(61.) 66 Fed. Reg. at 65,368.

(62.) 2001 FAR, supra note 52, at 15.306(d)(3).

(63.) 66 Fed. Reg. at 65,368.

(64.) Comp. Gen. B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD [paragraph] 79.

(65.) Id. at 2.

(66.) Id. (quoting the Agency Report, Tab XIII, Source Selection Determination, at 2).

(67.) Id. at 5 (quoting the Agency Report, Tab XIII, Source Selection Determination, at 2).

(68.) Id.

(69.) Id. at 2.

(70.) Id. at 5.

(71.) Id. at 5 (citing Raytheon Co., Comp. Gen. B-261959.3, Jan. 23, 1996, 96-1 CPD [paragraph] 37, at 11).

(72.) Id. at 6. The NIAID argued that the Health and Human Services Acquisition Regulations, 48 C.F.R. [section] 315.670 (2002), permitted it to hold "limited negotiations" with the selected offeror. The GAO disagreed, finding that the regulation limited such negotiations "to matters that would have no impact on the award decision and which do not prejudice the competitive interests or the rights of other offerors," unlike the situation here. Priorities One Servs., 2002 CPD [paragraph] 79, at 6 n.8.

(73.) Id. at 4. The protestor had also challenged the award on the grounds that the NIAID failed to conduct a reasonable cost-realism analysis. The GAO agreed and sustained the protest on this basis as well. Id.

(74.) Comp. Gen. B-289902, May 8, 2002, 2002 CPD [paragraph] 82.

(75.) Id. at 1-2.

(76.) Id. at 3.

(77.) Id.

(78). Id.

(79.) Id. at 4.

(80). Id.

(81.) FAR, supra note 39, at 15.306(a)(1) (defining clarifications as "limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated").

(82.) eMind, 2002 CPD [paragraph] 82, at 5.

(83.) Id. (referencing Microcosm, Inc., Comp. Gen. B-277326, Sept. 30, 1997, 97-2 CPD [paragraph] 133, at 6-7).

(84.) Comp. Gen. B-288468, Nov. 8, 2001, 2001 CPD [paragraph] 189.

(85.) The ten-month interim contract at issue was a "stopgap" contract to allow the GSA to take corrective action on the award of a five-year statewide contract for security guard services, which was to replace the previous five-year contract performed by the protestor. Id. at 2. A thirty-day "stopgap" contract, performed by the protestor, and a sixty-day interim contract, performed by ILP, preceded the ten-month interim contract that was the subject of this protest. Id.

(86.) Id. (referencing RFP sections F-3 and M-2).

(87.) Id.

(88.) Id. at 3.

(89.) Id. at 4.

(90.) Id. at 5.

(91.) Id. at 7.

(92.) Id.

(93.) Id. at 7-8.

(94.) Id. at 9. The GAO recommended that the agency reopen evaluation of proposals, prepare a new evaluation report, and make a new source selection decision, "taking care to explain any benefits associated with the tradeoff decision." Id. at 11.

(95.) Comp. Gen. B-289592, B-289592.2, Mar. 20, 2002, 2002 CPD [paragraph] 62.

(96.) Id. at 1-2. The solicitation contained conflicting provisions regarding past performance. One section required at least three references, but no more than six; another section required a minimum of six references. Id. at 2.

(97.) Id. at 3.

(98.) Id. at 4.

(99.) Id. at 4-5.

(100). Id. at 5.

(101.) Id. "In the cases of an offeror without a record of relevant past performance or for whom information is not available, the offeror may not be evaluated favorably or unfavorably on past performance." See FAR, supra note 39, at 15.305(a)(2)(iv).

(102.) Chicataw Constr., 2002 CPD [paragraph] 62, at 5.

(103.) Comp. Gen. B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD [paragraph] 91, at 15 (stating the GAO's skepticism of agency reevaluations prepared in response to protests because they have been "prepared in the heat of an adversarial process" and "may not represent the fair and considered judgment of the agency, which is a prerequisite of a rational evaluation and source selection process").

(104.) Chicataw Constr., 2002 CPD [paragraph] 62, at 7.

(105.) Id. at 8; cf. Postscript V: Past Performance Evaluations, 16 NASH & CIBINIC Rep. 7, [paragraph] 34 (2002) (concluding that the GAO endorsed a technique that represented "abysmally bad mathematics," and arguing that FAR section 15.305(a)(2)(iv) applies to offers as a whole rather than single contracts).

(106.) Chicataw Constr., 2002 CPD [paragraph] 62, at 8.

(107.) Comp. Gen. B-290427, Aug. 9, 2002, 2002 CPD [paragraph] 146.

(108.) Id. at 5-6.

(109.) Id. at 1.

(110.) Id. at 3 (citing the Agency Report, Tab 9, Final SSB Report, at 14-16).

(111.) Id. (citing the Agency Report, Tab 9, Final SSB Report, at 16-18).

(112.) Id.

(113.) Id. at 4.

(114.) Id. (citing Perini/Jones, Joint Venture, Comp. Gen., B-285906, Nov. 1, 2000, 2002 CPD [paragraph] 68, at 4-5; ST Aerospace Engines Pre. Ltd., B-275725, Mar. 19, 1997, 17-1 CPD [paragraph] 161, at 3).

(115.) Id.

(116.) Id. at 5-6.

(117.) Id. at 6.

(118.) Id. Finding "a substantial chance for [the protestor] to receive the award under a reasonable evaluation," the GAO concluded that the Navy's errors prejudiced the protestor and recommended that the "Navy reopen discussions if necessary, request and evaluate revised proposals, and make a new source selection decision." Id.

(119.) Comp. Gen. B-289942, B-289942.2, May 24, 2002, 2002 CPD [paragraph] 88.

(120.) Id. at 1-2.

(121.) Id. at 3.

(122.) Id.

(123.) Id. at 4.

(124.) Id. (citing a NASA legal memorandum).

(125.) Id. at 6 (citing AIU North America, Inc., Comp. Gen. B-283743.2, Feb. 16, 2000, 2000 CPD [paragraph] 39, at 7-8).

(126.) Id. at 6-7.

(127.) Id. at 7 (citing TRW, Inc., Comp. Gen. B-234558, June 21, 1989, 89-1 CPD [paragraph] 584, at 5).

(128.) Id. The GAO noted the general rule that, although it considers the entire record when reviewing the reasonableness of an agency's award decision, it gives "greater weight to contemporaneous materials rather than judgments made in response to protest contentions." Id. (citing Beacon Auto Parts, Comp. Gen. B-287483, June 13, 2001,2001 CPD [paragraph] 116, at 6).

(129.) Id. (citing Beacon Auto Parts, 2001 CPD [paragraph] 116, at 7-8; Satellite Servs., Inc., Comp. Gen. B-286508, B-286508.2, Jan. 18, 2001, 2001 CPD [paragraph] 30, at 9-11; AIU North America, 2000 CPD [paragraph] 39, at 7-11).

(130.) Id. at 12. The GAO sustained the protest and recommended that NASA "make a new source selection decision containing a sufficient and documented comparative analysis of the proposals and the rationale for any cost/technical tradeoffs." Id.

(131.) Comp. Gen. B-290732, Sept. 25, 2002, 2002 CPD [paragraph] 169.

(132.) Id. at 2 (quoting RFP, section M-l).

(133.) Id.

(134.) Id. at 2 n.4.

(135.) Id. at 3. Shumaker also argued that the agency improperly evaluated its technical proposal: Id. The GAO disagreed, finding that the record supported the agency's technical evaluation. Id. at 6.

(136.) Id. at 6. Describing the "best value" award decision-making process, the RFP stated that "[t] he critical factor in making any cost/technical trade-offs is not the spread between the technical ratings, but rather the significance of that difference." Id. (quoting RFP, section M-1).

(137.) Id. at 7. The contracting officer and the TEP concluded that the difference of about $400,000 was "justified;" they highlighted URS's 44% advantage in overall technical rating when compared to Shumaker, including a 100% difference in the "important aspect" of "technical approach," and found that URS's proposed cost was below the government estimate. Id. (citing the Agency Report, Tab D, Memorandum of Negotiation, at 2).

(138.) Id. at 7-8.

(139.) Id. at 8.

(140.) Id. (citing Ready Transp., Inc., Comp. Gen. B-285283.3, B-285283.4, May 8, 2001 CPD [paragraph] 90, at 12).

(141.) Id. (citing Opti-Lite Optical, Comp. Gen. B-281693, Mar. 22, 1999, 99-1 CPD [paragraph] 61, at 5).

(142.) While the provisions at FAR section 15.303 suggest that the source selection decision is made by a single person, some noted government contract experts "believe the source selection decision is a team decision, and ... that is as it should be." Ralph C. Nash & John Cibinic, The Source Selection Decision: Who Makes It?, 16 NASH & CIBINIC REP. 5 (2002). Compare this to the approach in the Army Federal Acquisition Regulations Supplement (AFARS): "The SSA shall not receive a recommendation from any individual or body as to whom shall receive the award and additionally shall not receive a rank order or order of merit list pertaining to the offers being evaluated." U.S. DEP'T OF ARMY, ARMY FEDERAL ACQUISITION REG. SUPP. 5115.101 (Jan. 2002).

(143.) Comp. Gen. B-289863, B-289863.2, May 13, 2002, 2002 CPD [paragraph] 83.

(144.) Id. at 2. The non-cost factors included management capability, technical capability, experience, and past performance. Because the agency also contemplated a cost reimbursement contract, it notified the offerors that proposals "would be evaluated to determine cost reasonableness, cost realism, and completeness of the costs." Id. The agency would then assign a risk rating based on the cost and technical evaluations. Id.

(145.) Id. at 2-3.

(146.) Id. at 3.

(147.) Id. at 4. The SSA concluded that the protestor's proposal "should have been assigned weaknesses in the area of subcontracting" and a performance risk "based on her conclusion that [the protestor's] low labor rates could result in cost growth over the course of the contract." Id. The SSA also discounted several of the weaknesses identified by the TET and CET in ITT's proposal. Id. (referencing the agency's source selection documents).

(148.) Id. (citing AIU North America, Inc., Comp. Gen. B-283743.2, Feb. 16, 2000, 2000 CPD [paragraph] 39, at 7-8).

(149.) Id. at 5.

(150.) Id. at 6.

(151.) Id. at 10. The GAO sustained DynCorp's protest and recommended that the agency amend the RPF to clarify its data requirements, obtain revised proposals, and evaluate the proposals consistent with its opinion before making a new source selection decision. Id. at 11.

(152.) Comp. Gen. B-288852, Dec. 12, 2001, 2001 CPD [paragraph] 201.

(153.) Id. at 1-2.

(154.) Id. at 3 (quoting the Agency Report). Noting that the VA appeared to suggest that A&D's proposal was not "technically acceptable," the GAO stated that the contemporaneous evaluation documentation contradicted any such suggestion, and that its own review of the record indicated otherwise. Id. at 3 n.2.

(155.) Id. (referencing Kathpal Tech., Computer & Hi-Tech Mgmt., Inc., Comp. Gen. B-283137.3, Dec. 30, 1999, 2000 CPD [paragraph] 6, at 9, 12).

(156.) Comp. Gen. B-288852.2, May 2, 2002, 2002 CPD [paragraph] 74.

(157.) Id. at 4.

(158.) Id. The cemetery's lack of spaces was costing the VA $2500 per day to store remains until it could bury them. Using this figure, the VA calculated that Stronghold's shorter completion time represented savings of $162,500 to the agency. Id. The agency also determined that Stronghold's record of "'efficiently performing the project to avoid the least amount of disruption in the project's surrounding environment'" represented additional cost savings. Id. (quoting the Agency Report, Tab W, Cost/Technical Tradeoff Reevaluation of Offers (Jan. 7, 2002)).

(159.) Id. at 5. A&D also challenged the propriety of the VA's decision to allow Stronghold to continue contract performance after the initial protest filing. Id. at 6. While the VA project manager drafted a justification memorandum for continued performance based on urgent and compelling circumstances, higher headquarters post the memorandum. Thus, no appropriate authority had signed the memorandum, and no one provided it to the GAO, as required under the Competition in Contracting Act of 1984. Id. at 6-7 (citing 31 U.S.C. [section] 3553(d)(3)(C) (2000)). Accordingly, the GAO recommended that the VA direct Stronghold to discontinue performance until the VA reevaluated the proposals and performed a new cost-technical tradeoff, consistent with the RFP's terms. Id. at 7.

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