Government Contracts Monitor

Not Every Apparent Evaluation Inconsistency Will Be Found Unreasonable

April 5, 2017

By: Lindsay Simmons

Many protests result from a perception of unfairness based on an agency action the protestor considers unreasonable. This certainly makes sense, as an unreasonable action or decision by the agency is one of the things that can lead the Government Accountability Office (GAO) to sustain a protest (assuming the protestor was prejudiced). Offerors must remember, however, that reasonableness is in the eye of the beholder. And, as the recent decision in Glacier Technical Solutions, LLC, B-412990.3 (March 15, 2017) reminds us, the GAO does not always agree with an offeror’s conclusions regarding reasonableness, even in the face of what appears to be an obvious inconsistency.

The Glacier case involved the Army’s award of a contract to SAWTST, LLC for test and evaluation technical services. The request for proposals (RFP) was issued as a competitive 8(a) set-aside for administrative support, data management, data collection, instrumentation, information technology services, and logistics support for various Army test centers and directorates. The solicitation provided the award would be made on a best-value basis, considering three factors: (1) mission capability; (2) past performance; and (3) cost. The mission capability factor was comprised of three subfactors: (a) technical approach; (b) management approach; and (c) response to the patriot task authorization request.

As relevant here, the Management Approach subfactor was to be evaluated based on the offeror’s proposed organizational structure, its ability to promote the efficient and flexible utilization of personnel, its methods of recruitment and retention, whether the offeror demonstrated an understanding of the special skills required to conduct operational testing, and its ability to obtain and keep qualified personnel, as well as meet other personnel staffing metrics. The solicitation also specifically provided that the agency would evaluate an offeror’s management approach to determine whether it conformed to baseline staffing levels provided by the agency, the offeror’s proposed management structure, its supervisor to employee ratios, and its use of technical leads. Id. The RFP also explained that an offeror’s cost volume should conform to the agency’s baseline staffing plan and cautioned offerors that if they proposed a unique management approach that deviated from the agency’s baseline, those deviations had to be “fully explained and justified” in the cost narrative section of their proposals. In addition, the RFP stated that the Army would develop a most probable cost (MPC) estimate for award evaluation purposes, and that unrealistically low costs would be considered a performance risk.

The Army received three offers in response, including those from SAWTST and Glacier Technical Solutions, LLC (Glacier). After initial evaluation, the agency conducted discussions and evaluated final revised proposals from SAWTST and Glacier. In the final analysis, both SAWTST and Glacier received Good ratings for Mission Capability and Satisfactory Confidence ratings for Past Performance. Adjustments were made to both offeror’s proposed costs, leading to MPC’s of $98,920,373 (SAWTST) and $106,608,309 (Glacier). In SAWTST’s case, the adjustment was based on concerns with SAWTST’s staffing methodology. However, the army still awarded the contract to SAWTST based on the cost differential given the offerors’ identical ratings non-cost factors.

When the Army awarded the contract to SAWTST, Glacier protested the agency’s award decision. In response, the Army took corrective action by conducting a reevaluation of Glacier’s proposal, but it again awarded the contract to SAWTST. Glacier then filed another protest, this time challenging the agency’s technical evaluation and cost realism analysis of SAWTST’s proposal. While GAO rejected Glacier’s cost realism arguments, it sustained the overall protest because the contemporaneous record failed to explain how the technical evaluation team (TET) concluded that SAWTST’s proposal merited a good rating under the mission capability factor despite its rejection of part of SAWTST’s proposed staffing plan.

In response, the Army’s team reevaluated SAWTST’s technical proposal and documented its rejection of the proposed cost savings provided by SAWTST’s staffing methodology. The TET went on, however, to explain that, while it did not agree that SAWTST’s staffing methodology would provide the cost savings identified by SAWTST, it considered the staffing methodology to be a good idea that could “possibly save money” in other ways. In this regard, the source selection authority noted that, while SAWTST’s proposed staffing methodology was acceptable, the TET had rejected the proposed claims of potential efficiencies. As a result, the agency made no changes to its previously assigned technical ratings and again awarded to SAWTST based on the cost differential.

Glacier once again protested, this time challenging the agency’s evaluation of SAWTST’s technical proposal and contending that the Army’s source selection decision is flawed. The crux of Glacier’s argument was the contention that “the Army could not reasonably reject the cost savings associated with a proposed staffing methodology without rejecting the technical efficacy of that staffing methodology itself”. Unfortunately for Glacier, the GAO characterizes this argument as simply Glacier’s disagreement with the Army’s rationale for the technical rating. Of course, the GAO has long held that a “protester’s disagreement with the agency’s evaluation, without more, is not sufficient to render the evaluation unreasonable”.

Here, the GAO found the agency’s technical evaluation to be reasonable. As the GAO noted, the TET performed a “crosswalk on the labor category reductions proposed by [SAWTST]”, and on the basis of that review rejected the cost savings associated with the staffing methodology proposed by SAWTST, but concluded that the proposed methodology “was [still] a good idea” from a technical (as opposed to cost) perspective. According to the GAO, the upward cost adjustment complied with the RFP’s terms and reiterated that “there is no ban to an agency deciding that an offeror’s technical approach merits a good rating, while also making cost adjustments, as part of its cost realism assessment.” Or, as the GAO recently put it, there is “nothing inappropriate or inconsistent with the agency concluding that [protester’s] technical approach met the minimum standards for acceptability, and, at the same time, taking issue with the aspects of the firm’s staffing approach as part of its cost realism assessment . . . .”). Smartronix, Inc., B-413721.2 (Feb. 22, 2017)

In other words, just because you think there’s an inconsistency, that doesn’t mean it actually rises to the level of unreasonableness. Offerors must be careful to focus on what is unreasonable and to not fixate on inconsistency alone. Without more, inconsistency may only rise -- in the eyes of the GAO -- to mere disagreement with the agency. And such mere disagreement will not support a protest.

© 2017 Jackson Kelly PLLC