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Pre and Post Award Bid Protest

Weston-ER Protests Disparate Treatment by U.S. Army Corps of Engineers

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Weston-ER Federal Services, LLC protested the issuance of an indefinite-delivery, indefinite-quantity (IDIQ) contract to APTIM Federal Services, LLC by the Department of the Army, Corps of Engineers (Corps). The contract was issued for rapid, immediate, and emergency response environmental remediation and other mission-related support services. Weston-ER protested the agency’s evaluation of proposals and source selection decision with the Government Accountability Office (GAO).

Background

The RFP issued in July 2019 was for an IDIQ contract for environmental remediation services in the Corps Omaha District, and “its customers in the contiguous United States (CONUS), the South Atlantic Division area of responsibility (AOR), and the Pacific Ocean Division AOR.” The RFP stated the agency would issue fixed-price and cost-reimbursement task orders, consisting of a 3-year base period and 4-year option period, or until the $80 million contract capacity is expended.

The RFP included the following technical evaluation factors in the RFP descending order of importance: previous experience, organizational structure, resumes of key personnel, past performance, and small business participation plan. To evaluate the price of contracts, offerors provided cost information and propose rates binding for future fixed-price and cost-reimbursement task orders. All evaluation factors other than price, when combined, were rated “significantly more important than cost or price.” The source selection authority (SSA) would award the contract to the offeror with the best value to the government.

Proposal Evaluation

The RFP stated contractors’ previous experience was to be evaluated for breadth and depth, and its relevance to the RFP’s scope of work. The source selection board (SSEB) evaluated proposals and assigned ratings for each factor based on their strengths and weaknesses. Factors include previous experience, organizational structure, resumes of key personnel, and small business participation factor. The Corps evaluated the past performance factor based on relevance. It assessed the likelihood the offeror would successfully perform the RFP requirements, based on the relevancy and performance of the project.

Previous Experience Criteria

GAO noted the fundamental principle of federal procurement law is that agencies must treat all offerors equally. Contracting officials may not state solicitations will be evaluated one way, while following a different evaluation scheme without allowing offerors to amend their proposals. GAO stated it would sustain a protest where an awardee waived or relaxed its requirements.

Weston-ER Challenges

Weston-ER challenged all the weaknesses SSEB assigned to its projects. It argued its proposal “clearly stated remediation that would begin within 14 days,” yet SSEB concluded it was difficult to determine when personnel started on site remediation efforts or whether they started within 14 days is unreasonable. It stated the RFP’s scope of services distinguished preliminary phase/investigation services from remediation services, and listed “most of the anticipated activities to be performed under each.” GAO found this weakness unreasonable. It noted West-ER’s proposal, which states “Within 10 days, an initial assessment team of 2 Response managers were boots-on-the-ground to begin site remediation.” The Corps stated it was not reasonable to assume a contractor would direct managers to initiate and perform remediation efforts themselves.

Weston-ER asserted it was not clear whether work in response to Hurricanes Irma and Maria met the RFP’s definition of project. It argued this weakness was unreasonable because its proposal explained the project was performed “pursuant to a single task order” in Puerto Rico and the Virgin Islands. Weston-ER stated its evaluation was disparate, and the awardee, APTIM, should have received a similar weakness because one of its projects was performed on four different ships and at two different shipyards. The Corps argued the SSEB reasonably concluded Weston-ER’s HTRW project did not fulfill the definition of “project” stated in the RFP because the work was performed on different islands, and not on a single installation or facility. It added that APTIM’s project did not present the same weakness because the Naval based and BAE shipyard where the work was performed were contiguous sites and both were a part of the Naval Base San Diego Complex.

GAO concluded the agency’s assertion of APTIM’s project contradicted publicly available information. The agency did not explain how the four Navy ships at two shipyards qualified as “one site or multiple sites within a single installation or facility” and the Naval Base Sand Diego did not constitute “a single installation or facility.” GAO found the two projects differently resulting in the treatment of offerors being treated disparately by only identifying weakness in Weston-ER’s proposal.

Weston-ER challenged the weakness SSA identified in its proposal for not explaining the cost growth from $1 million to $11.25 million on its HTRW project. The weakness was attributed to an unstated evaluation criterion because offerors were not required to explain cost growth. The Corps responded by stating that unlike Weston-ER, APTIM explained the cost growth for its projects resulted from the addition of work scope. APTIM indicated “(Scope Added)” in its proposal following the disclosure of the final contract cost at completion for each of its projects. GAO found the Corps’ conclusions that APTIM’s inclusion of “(Scope Added)” was enough to explain the cost growth on its projects. It also noted the RFP did not require offerors explain differences between the contract award amount and the final contract cost at completion. It concluded the evaluation of a weakness based on an unstated criterion unreasonable.

Conclusion

GAO agreed with Weston-ER’s assertion that the three weaknesses SSEB and SSA identified were unreasonable and resulted in its disparate treatment. GAO sustained Weston-ER’s protest in June. It concluded the agency’s evaluation was unreasonable under the previous experience and past performance factors. It found the evaluation of both factors inconsistent with the terms of the solicitation, applied unstated evaluation criteria, and treated offerors unequally in the evaluation of their technical proposals. GAO recommended the Corps reevaluate offeror’s proposals consistent with the solicitation. For more information on how to protest government contract awards, contact Whitcomb Selinsky PC.

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About the AuthorWhitcomb, Selinsky, PC

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