Pre and Post Award Bid Protest

GAO Bid Protest and Significant Weakness

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Does your bid proposal have a "significant weakness?" On March 28, 2014, McGoldrick Construction Services Corporation protested the Corps of Engineer's (Corp) decision challenging the agency's evaluation of its technical proposal, which resulted in a finding that the GAO Bid Protest Significant Weakness The procurement was conducted pursuant to Federal Acquisition Regulation (FAR) subpart 36.3, two-phase, design-build selection procedures.

Request for Proposals

The RFP explained that the phase one proposals would be evaluated based on the following two factors, which were equal in importance: (1) past performance, and (2) organization and technical approach. The technical approach factor required that offerors describe their resources and capabilities "to manage and execute several concurrent Task Orders, which may be located throughout the Southwestern Division and surrounding areas."

The RFP provided for award on a best-value basis, considering five factors: (1) past performance, (2) organization and technical approach, (3) design technical, (4) summary schedule, and (5) price. After evaluating proposals, the technical evaluation team rated McGoldrick's proposal substantial under the past performance factor, and marginal under the organization and technical approach factor, largely because of a finding of a "significant weakness" in its technical proposal.

Corps' Evaluation

On October 22, the Corps notified McGoldrick that its proposal was not among the most highly-rated phase one proposals, and that it would not be included in phase two of the competition. McGoldrick's proposal received seven strengths, three weaknesses, one significant weakness, and one uncertainty. McGoldrick received a written debriefing on December 17, 2013, which explained that the company's technical approach factor was changed from marginal to acceptable. In its protest, McGoldrick argued that the Corps' finding of a significant weakness in the evaluation of its phase one proposal under the organization and technical approach factor was unreasonable. The GAO agreed and sustained its protest.

Unstated Evaluation Criteria?

The crux of McGoldrick's protest was that that the agency applied an "unstated evaluation criterion" in its technical evaluation by applying a stricter standard in evaluating the company's proposal than the solicitation required. In sustaining McGoldrick's protest the GAO posited that "The evaluation of an offeror's proposal is a matter within the agency's discretion." Further, it argued "In reviewing an agency's evaluation, we will not reevaluate the proposals, but will examine the record of the evaluation to ensure that it was reasonable and consistent with the stated evaluation criteria and procurement statutes and regulations, and to ensure that the agency's rationale is adequately documented." Carothers Constr., Inc., B-403382, Oct. 28, 2010, 2010 CPD ¶ 268 at 6. In articulating the standard of review, the GAO stated "While we will not substitute our judgment for that of the agency, we will sustain a protest where the agency's conclusions are inconsistent with the solicitation's evaluation criteria, undocumented, or not reasonably based. DRS ICAS, LLC, B-401852.4, B-401852.5, Sept. 8, 2010, 2010 CPD ¶ 261 at 4-5

The GAO concluded that the Corps' evaluation and assessment of a significant weakness to McGoldrick's proposal was unreasonable for three reasons. In finding a "significant weakness," the agency had found that McGoldrick's proposal failed to show how the company could execute several concurrent task orders based on the rationale that "[a] QC [manager] employed by the Prime must be present on a jobsite during construction or work may not be performed." The GAO determines that this rationale was inconsistent with the solicitation requirements, which provided that either the QC manager, "or his designated representative for the task order site," was required to be on the site at all times during construction. The GAO ruled further that the agency, while continuing to argue that its evaluation was reasonable, the Corps of Engineers was unable to support its evaluation criteria from the language in the solicitation.

GAO Agrees With Protestor

The GAO determined that based on its review of the record, the Army Corps of Engineers' interpretation of the solicitation was unsupported and unreasonable. The GAO also agreed with McGoldrick and found that its assertion that the agencies assessment of a significant weakness based on its proposal that its quality control manager's was unreasonable, because the RFP do not require offerors to demonstrate compliance of this segment of the RFP during phase one of the competition. Lastly, the GAO determined that the agencies conclusions regarding the timing of the companies projects and the availability of its staff were not reasonable. This is because the solicitation did not require a companies bidding on the RFP to demonstrate an ability to perform concurrent task orders as set cutoff date or that phase one of the proposals would be evaluated on such a basis. The GAO determined that the agency had not adequately explained why it was reasonable for it to conclude that McGoldrick's work in April through July 2013 demonstrated an inability to perform multiple task orders.

Ultimately, the GAO concluded that the Army Corps of Engineers' finding of a "significant weakness" was unsupported in the record and that the protester was prejudiced by this determination. In finding the latter, the GAO ruled that was reasonable to assume that seven strengths without outweigh, rather than offset, two weaknesses in the absence of a "significant weakness." Therefore, the GAO upheld McGoldrick's protest.

About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.


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