Leumas Residential, LLC protested a contract award made to DSA, LLC by the Department of the Navy. It challenged the Navy’s evaluation of its proposal as technically unacceptable. The U.S. Government Accountability Office (GAO) sustained the protest by Leumas.
The Request for Proposal (RFP) was issued in October 2019 as a competitive 8(a) set-aside contract for grounds maintenance services for Navy facilities in Virginia and Maryland. The award was to be made on a lowest-price, technically acceptable (LPTA) basis considering the price and three non-price factors: technical approach/management; safety; and past performance. The price was to be evaluated for completeness and reasonableness.
The navy received three proposals, which were evaluated by a source selection evaluation board (SSEB). The contracting officer, acting as the source selection authority (SSA) concurred with the SSEB’s findings. The SSA found DSA’S lowest-priced, technically acceptable proposal with a fair and reasonable price was the best value to the government and selected for the award. Leumas filed a timely protest after being notified of DSA’s selection.
Leumas challenged the Navy’s assessment of significant weaknesses and deficiencies under the technical approach/management factor and safety factor. These alleged deficiencies led to the agency’s finding Leumas’ proposal was unacceptable under both factors. GAO stated it would not substitute its judgment for that of the agency. It would sustain a protest where the agency’s conclusions are inconsistent with the solicitation’s evaluation criteria. It noted the lack of documentation or retention of evaluation materials by an agency would bear the risk there may be insufficient supporting rationale in the record to conclude the agency had a reasonable basis for its conclusions.
Compliance with Subcontracting Limitation Clause
Leumas argued the Navy unreasonably determined its subcontractor would incur more than 50 percent of the cost of personnel. The Navy asserted the proposal, on its face, led to the conclusion Leumas’ proposal failed to comply with FAR clause 52.219-14. This clause states “at least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern.” GAO noted an offeror is not required to “affirmatively demonstrate compliance with the subcontracting limitations in its proposal.” Compliance is presumed unless negated by “other language in the proposal.” GAO found the Navy’s conclusion that Leumas did not abide by the subcontracting clause unreasonable. It noted that nothing in the evaluation record indicated how the agency concluded Leumas took exception to the requirement.
Knowledge of Virginia Department of the Environment Requirements
Leumas argued the Navy used an unstated evaluation factor when it determined Leumas’ proposal failed to show its knowledge of the Virginia Department of Environment (VDE) requirements. Leumas stated the solicitation required offerors explain how they would ensure compliance with the VDE requirement. The Navy asserted the proposal demonstrated Leumas’ personnel did not have knowledge of VDE requirements. It argued Leumas did not have a non-supervisory certified pesticide applicator and hiring an untrained and unlicensed contractor would put the agency at risk of “environmental mismanagement with long-lasting legal and environmental effects.” GAO noted the record had no documentation that supported the agency’s concerns regarding the feasibility of Leumas’ approach or capability to meet its requirement. It stated the record only showed the agency assessed a deficiency because Leumas’ proposal did not demonstrate knowledge of VDE requirements. The agency did not demonstrate this was a requirement of the solicitation. GAO found the Navy’s responses to the protest allegations unpersuasive.
Phase-In Transition Plan
Leumas asserted the Navy improperly assessed its proposal a significant weakness under the phase-in transition plan for failing to include “actions and responsibilities of non-supervisory personnel.” The agency argued Leumas received a rating of significant weakness because its employees were untrained and “possibly not ready to meet mission requirements. The agency determined Leumas provided an adequate schedule of key events in the plan but did not “include actions and responsibilities of non-supervisory personnel.” The technical Evaluation Board (TEB) found this as a weakness.
GAO disagreed with the Navy and found Leumas’ transition plan met the minimum requirements of the solicitation. The proposal gave a description of a phase-in transition plan and a chart giving information on the following: key events and actions; personnel responsible for each event and action; and a time frame for the listed event and action.” Leumas also stated “all employees will be trained in accordance with the rules, regulations, and schedules of Leumas-ProDyn.” GAO concluded it could not find the Navy’s conclusion reasonable or adequately documented.
Lack of Work Plan for Pest Control
The Navy found Leumas had a significant weakness for failing to include a contractor work plan (CWP) for pest control. Leumas asserted it provided a detailed work plan in its proposal. The Navy stated the proposal failed to “explain how it would follow the principles of Integrated Pest Management (IPM) and reflect current industry practices.” The agency argued the Leumas’ proposal indicated it had certified pest control employees, but the source selection board (SSEB) “determined that having a licensed pest control applicator does not constitute a comprehensive work plan.” It added Leumas’ proposal did not meet the minimum standard because the solicitation “required offerors to provide the actual IPM for evaluation purposes.” GAO noted the Navy later acknowledged Leumas’ proposal did include a CWP for pest control leading to its finding that the agency’s conclusion is not reasonable or adequately documented.
The Navy assessed a deficiency to Leumas’ proposal for providing data for only one year of the three years required by the RFP. Leumas argued the deficiency was unreasonable because its proposal included safety data for three years. The Navy responded by stating Leumas was required to provide an explanation because it provided a numerical value of “0” for two calendar years. It asserted it gave a value of “0” to years 2016 and 2017 for no annual loss of insurance claims; no OSHA Days Away from Work, Restricted Duty, or Job Transfer occurrences; and no recordable OSHA cases. GAO noted there was nothing in the solicitation that required offerors with a rating of “0” in its safety data to provide additional explanation why it received such rating. The solicitation only required an affirmative statement and explanation if the offeror had no safety data for any particular year. GAO concluded it could not find the Navy’s evaluation reasonable or adequately documented.
GAO stated it does not sustain a protest unless the protester demonstrates, but for the agency’s actions, it would have had a substantial chance of receiving the award. It concluded, but for the errors made, the Navy may have assigned an “acceptable” rating for the technical approach and safety factors. GAO found none of the arguments made by the Navy “reasonably supported its conclusion” that the proposal was unacceptable. It recommended the agency reevaluate Leumas’ technical proposal in accordance with the solicitation and GAO’s decision, document its evaluation findings, and make a new source selection decision. GAO recommended the award be made to Leumas and the award made to DSA be cancelled if Leumas’ proposal is found technically acceptable and provides the lowest price to the government. For more information on government contracts and for assistance protesting contract awards, contact Whitcomb Selinsky at (866) 476-4558.