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Pre and Post Award Bid Protest

U.S. Army Corp of Engineers RFP Challenged by IDS International

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IDS International Government Services, LLC (IDS) challenged the terms of request for proposals (RFP) issued by the Department of the Army, Corps of Engineers.  The RFP was for the operations and maintenance (O&M) service at sites in Afghanistan.  IDS argued several terms of the solicitation are ambiguous and failed to provide adequate information about the agency’s requirements.  The U.S. Government Accountability Office (GAO) sustained the protest.

Background

The solicitation was issued in May 2020 for O&M services at sites and facilities in Afghanistan for the Afghan National Defense Security Forces (ANDSF) and the Government of the Islamic Republic of Afghanistan (GIRoA).  Responsibilities for the contract required providing management, supervision, labor, materials and supplies, tools, security, transportation, life support and operations, and the maintenance and repairs of equipment and systems for facility O&M services.

The solicitation was for an award of an indefinite-delivery, indefinite-quantity contract with a 1-year period of performance and 1-year option.  Proposals were evaluated on the basis of price and the following non-price factors: experience, phase-in and organization plan, management and technical approach, and past performance.  The RFP did not specify the weight of the non-price factors.  The non-price factors combined together are rated ‘approximately equal’ to price.”

Challenges to the Solicitation

IDS filed a protest with the Army Corps of Engineers prior to the closing date.  It asserted the solicitation was ambiguous.  IDS raised the following factors to the terms of the solicitation were ambiguous: the experience factor; the basis for award; the phase-in and organizational approach evaluation factor; price evaluation factor; Performance Work Statement (PWS) was ambiguous; and the PWS lacked sufficient information regarding aspects of the O&M requirements.  The protester also challenged the agency’s disclosure of its proprietary information in connection with the 2018 RFP caused it a competitive harm.  It argued the agency improperly disclosed its proprietary information in a solicitation for the same requirements in 2018 and the disclosures caused it a competitive harm.

Experience

Offerors were instructed to demonstrate their capability through past performances similar to the types of services described in the PWS.  They were required to submit between three and six projects they completed within the past six years or were currently performing and at least 80% complete.  The depth of Offerors’ experience was rated based on their experience managing and executing projects similar in magnitude of $5M and complexity in the past six years.  Great weight was attributed to proposals performed in Afghanistan, for the U.S. government in Afghanistan, similar to the types of services of this solicitation of more than $10 million; projects that demonstrated simultaneous work in more than two locations, and projects with the appropriate type of experience and 100% complete. 

The Army Corps of Engineers argued there was no conflict between the evaluation criteria and adjectival ratings.  It stated the adjectival ratings anticipated the agency would assess an offeror’s understanding based on its experience.  GAO noted the proposal instructions and evaluation criteria did not address the offeror’s approach to the requirements, leaving ambiguity as to the proposal requirements and basis for evaluation.  The agency argued there was no basis of finding ambiguity in the solicitation because adjectival ratings are only “’guides for intelligent decision-making in the procurement process.’  GAO explained in similar protests that evaluation scores are “merely guides to intelligent decision making.”  Source selection officials are required to consider the advantages and disadvantages associated with specific content of competing proposals or quotations.  A source selection authority may disagree with or disregard evaluators’ assignment of adjectival ratings, as long as it is reasonable and documented.

GAO agreed with IDS’ assertion the experience factor is ambiguous.  It found that regardless of how the award decision utilizes the adjectival ratings assigned, it is unclear whether offerors would be evaluated based solely on the information requested for experience, or on different information concerning their understanding and approach to the requirements.  GAO sustained the protest and recommended the agency amend the solicitation to clarify what offerors should address in their proposals and how they would be evaluated by the agency.

Conclusion

The GAO only found a basis to sustain the protest for the experience factor.  It found the solicitation’s experience factor ambiguous regarding the basis on which proposals will be evaluated.  It recommended the U.S. Army Corps of Engineers amend the solicitation and allow offerors to submit revised proposals. 

Do you need help protesting a government request for proposals (RFP)? Contact us today as Whitcomb, Selinsky, PC has a team of experienced government contract attorneys ready to help you.

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About the AuthorRaymundo Ribota

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