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Pre and Post Award Bid Protest

U.S. Army Receives Award Protest Due to Terms of RFQ

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AES UXO, LLC protested the terms of a request for quotations issued by the U.S. Department of the Army for unexploded ordinance clearance services at Fort McCoy in Wisconsin. It argued the solicitation’s evaluation criteria related to the evaluation of relevant experience and past performance are too restrictive of competition. The Government Accountability Office (GAO) sustained the protest in part and denied it in part.

Background

The request for quotations (RFQ) was for a service-disabled veteran-owned small-business (SDVOSB) set-aside. The contract was to be awarded based on a best-value tradeoff basis of a fixed-price, indefinite-delivery, indefinite-quantity type contract for a base year and four 1-year options for unexploded ordnance clearances services at Fort McCoy. The U.S. Army was to evaluate quotations based on the equally weighted factors: price, technical, and past performance.

AES challenged the solicitation’s evaluation scheme that included the evaluate of quotations regarding relevant experience and past performance. The relevant experience requirement provided that offerors should submit two examples of “recent, relevant projects that the offeror completed and served as the prime contractor or in Joint Ventures (JV) for similar requirements to this project. GAO noted the U.S. Army “made it clear” it would confine its evaluation of past performance to “instances where the firm submitting the quotation had performed as a prime contractor or member of a joint venture.”

Analysis

AES argued the contractor requirements were unduly restrictive of competition. It stated the acquisition set aside for SDVOSB concerns is unfair to require that firms demonstrate relevant experience and past performance as a prime contractor, or member of a joint venture. AES argued the relevant experience or past performance gained as a subcontractor should be adequate to satisfy the agency’s requirement.

The agency stated its intent in drafting the terms of the RFQ is to ensure that it only evaluate relevant experience and past performance of the firm “actually submitting the quotation.” According to the agency, it did not want to evaluate the relevant experience or past performance of any subcontractor that the firm identified in its quotation. This is because of its inability to require the firm submitting the quotation to use a specific subcontractor after award.

GAO found the agency misunderstood the protester’s position and “the meaning of the language of the solicitation.” It agreed with the protester’s argument the plain meaning of the RFQ precludes an evaluation of a firm’s relevant experience and past performance to the extent gained while performing as a subcontractor. It concluded this was unintended by the agency. It found the agency’s position did not want firms to rely on the relevant experience or past performance examples of a subcontractor that may later not join the prime contractor in performing the contract. It noted the RFQ instead penalizes firms that have relevant experience and past performance by not allowing them to received credit for their experience and past performance because it was obtained as a subcontractor. GAO concluded the RFQ disadvantages AES. It found that it prevents it from demonstrating its experience and past performance gained as a subcontractor. It also failed to fulfill the agency’s objective of evaluating only the relevant experience and past performance of the firm that would actually perform the requirement.

AES objected to the RFQ’s requirement that relevant experience be “similar to” and “align with” the scope of the solicitation’s performance work statement. AES asserted this required firms to have previously performed work at Fort McCoy to meet this requirement. GAO did not object to this aspect of the solicitation. It found “nothing inherently unreasonable or improper in the agency’s seeking to evaluate relevant experience performing the work actually contemplated by the RFQ.”

Conclusion

GAO recommended the U.S. Department of the Army revise the solicitation. It also recommended the agency provide all firms with the opportunity to submit revised quotations in response to the revised RFQ. The protest was sustained in part and denied in part. For more information on how to protest a contract award decision from a government agency, contact Whitcomb Selinsky PC.

About the AuthorRaymundo Ribota

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