about-hero

Business Law Blog

Instructions in RFP Cannot Factor into Evaluation Criteria

Comments: 0

A request for proposals (RFP) is an effective way to find the right vendor for a contract or project. When done properly, an RFP provides transparency on the specific requirements needed and justifies why a specific contractor was awarded the contract. A well-crafted RFP should include an evaluation rubric. If several evaluation factors are noted in the RFP, the solicitor should note which, if any, factors are weighted in their scoring. By sharing this information, offerors will understand how they are being scored. Due to this transparency, a well-crafted RFP can reduce issues associated with favoritism and unfair evaluations. 

Instructions to the offerors can accompany an RFP. These instructions are additional information, including such things as submission deadlines but do not contain any pertinent information on how the bids will be evaluated. So, what happens if a solicitor evaluates bids based on information in these instructions and not solely on the evaluation process outlined in the RFP? 

Seaward Services, Inc. GAO Protest B-420580; B-420580.2
Decision issued June 13, 2022

THE SOLICITATION

The Department of the Navy, Military Sealift Command, issued an RFP for services in connection with the worldwide operation, maintenance, and repair of the USNS Guam. The RFP was for the award of a fixed-price contract on a best-value tradeoff basis for a one-year base period and four one-year options. Per the RFP, the Navy evaluated the proposals based on price, as well as other factors, including two “tradeoff” factors (technical approach and past performance). These two factors were deemed of equal importance to one another. However, the two factors together were deemed significantly more important than price. Due to the unique physical characteristics of the USNS Guam - a large, high-speed transport vessel with a catamaran (dual) hull constructed of aluminum, categorized as an expeditionary fast transport craft capable of sustained, high-speed travel in an open ocean environment - the RFP stated proposals would be evaluated on the offerors’ experience and past performance in connection with operating and maintaining aluminum-hulled vessels.

The Navy received two proposals: one from Seaward Services, Inc. (SSI) and the other from TOTE Services, LLC (TOTE). After completing their evaluation, the Navy rated both proposals “Good” in their technical approach factors and “Satisfactory” in their past performance factors. SSI’s proposal price was $45,606,758, while TOTE’s proposal price was $39,066,900. Based on these results, the Navy awarded the contract to TOTE. After being advised of the selection decision and requesting and receiving a debriefing, SSI filed a protest with the Government Accountability Office (GAO).

THE PROTEST

Technical approach evaluation

For its evaluation of the proposals, the RFP stated the Navy would evaluate the technical approach factor as a single factor with four areas of evaluation within it, including technical management approach, staffing approach, training plan, and aluminum experience. With respect to the offerors’ aluminum experience, the RFP stated 1) the offeror provided a detailed narrative that describes their aluminum operation, maintenance, and repair experience; and 2) for evaluation purposes, experience with aluminum hull material may be considered a strength.

SSI argued it has extensive experience with the exact types of vessels the contract is for, including experience with the USNS Guam. SSI provided details relating to the operation, maintenance, and repair performed on three different large, high-speed ocean-going aluminum-hulled vessels, including the dates and details surrounding the performance of numerous dry dock repair services performed on the three vessels detailed in their proposal. SSI stated TOTE had no experience operating, maintaining, or repairing the same types of vessels. As a result, SSI argued the Navy unreasonably found the proposals comparatively equal under the technical approach factor.

During its evaluation, the Navy noted one strength within SSI’s proposal, where it showed its extensive experience with aluminum-hulled vessels similar to the USNS Guam. The record showed the Navy noted two strengths within TOTE’s proposal: one for its own aluminum experience and one for the experience of TOTE’s port manager. 

When responding to this protest, the Navy suggested the RFP did not require firms to have actual experience, but rather they could adequately describe their approach to meeting the RFP requirement. 

Past performance evaluation

In its protest, SSI did not have any problem with the substantive or qualitative findings made in the past performance evaluation but rather held issue with what past performances the Navy deemed relevant. SSI argued the Navy was required to find any contract involving aluminum-hulled vessels to be deemed more relevant, and as a result, the Navy erred in finding some of SSI’s past performance not relevant. 

The first example was SSI’s past performance in a contract with Austal USA, where they provided officer crews to man newly constructed ships for the Navy during sea trials. The Navy found this past performance was not relevant, noting the contract was significantly different from the solicited requirement. Under the Austal USA contract, SSI was only required to perform an average of 3.5 sea trials per year, which amounts to about 28 days per year of performance. This contract performance differed vastly from the USNS Guam, which would require full-time operation. 

The second example discussed was TOTE’s past performance under a contract with the Department of Transportation’s Maritime Administration for operating and maintaining a fleet of six fast sealift ships, which was rated somewhat relevant by the Navy. The Navy determined that although these ships were not made from aluminum like the USNS Guam, they were still large vessels with a large payload capacity. In fact, the Navy found that managing this fleet was even more complex than the solicited requirement for the USNS Guam, and the magnitude of the effort of that contract was similar to the contract for the USNS Guam. 

Based on the past performance examples provided by SSI and TOTES in each of their proposals, the Navy concluded both proposals to be equal under the technical approach factor and assigned them both ratings of “Good.”

the outcome

Technical approach evaluation

One issue the GAO ran into during its examination was that many details regarding the Navy’s findings were not discernible because the record from the Navy was so heavily redacted. From the limited record presented by the Navy, the GAO determined TOTE had little to no experience with similar vessels. TOTE demonstrated they had some experience with one small aluminum vessel, where they had limited operations, but failed to include a copy of the subcontracting agreement with that vessel. Additionally, TOTE failed to show any dry-docking experience with aluminum vessels. 

As far as TOTE’s second strength relates to the experience of their port manager, the Navy relied on the fact that TOTE’s proposed port engineer had experience as a first assistant engineer with aluminum-hulled vessels. However, the individual’s resume had no details about their experience or assignment duties in relation to aluminum-hulled vessels. Based on this information, the GAO concluded the Navy’s evaluation of TOTE was unreasonable. 

Regarding the Navy's suggestion, the RFP did not require firms to have actual experience, but rather they could adequately describe their approach to meeting the RFP requirement; the GAO deemed the Navy misread the terms of the solicitation. The section the Navy quoted from was in the instruction to offerors rather than in the aluminum hull experience area of the technical approach evaluation factor. The GAO clarified that agencies are required to evaluate proposals based exclusively on the evaluation factors stated in the solicitation. Additional requirements may only be considered when they are also specified as a basis for proposal evaluation.

Past performance evaluation

The GAO found no merit in this aspect of SSI’s protest. Regarding SSI’s first past performance example with the Austal USA, the GAO concluded the Navy’s relevancy determination for this example of SSI’s past performance was reasonable. In the second example regarding TOTE's experience under a contract with the Department of Transportation’s Maritime Administration, the GAO concluded the Navy’s relevancy determination for this example of TOTE’s past performance was reasonable. The GAO concluded the Navy’s past performance evaluation was reasonable and consistent with the terms of RFP’s past performance relevancy requirements and denied this aspect of SSI’s protest.

The GAO sustained SSI’s protest and recommended the Navy reevaluate the proposals in a way consistent with the RFP to make a new source selection. If the result of the reevaluation was that SSI, rather than TOTE, represented the best value to the government, the GAO recommended the contract with TOTE be terminated and the award be made to SSI instead. Lastly, the GAO recommended the Navy pay SSI the costs associated with filing and pursuing its protest, including reasonable attorney’s fees.

THE TAKEAWAY

The Navy’s RFP clearly outlined how each bid would be evaluated, including how the factors would be weighed against one another. Unfortunately, the Navy used information in the RFP’s instructions to evaluate the bids from SSI and TOTE. Although it was within the Navy’s rights to evaluate the bids on the requirements needed for this project, all evaluation criteria needed to be included in the solicitation’s evaluation section. If the information provided in the instructions to the offerors was included in the evaluation section, the outcome of this protest might be different. 

If you believe your bid was unfairly and unreasonably evaluated by a solicitor, contact us at Whitcomb, Selinsky, PC. We are on your side!

Contact Us

About the AuthorWhitcomb, Selinsky, PC Staff

Whitcomb, Selinsky, PC is a full service law firm serving clients’ diverse legal needs. Our focus is in helping people in their interactions with federal, state and local governments.

prev
Next

    Categories