GAO Sustains Protest after Awardee Credited with Strengths Not Present in its Proposal

Strong working relationships between contractors and contracting officers are a significant asset. For example, the Customs and Border Patrol recently relied heavily on its experience working with the incumbent contractor to “infer” proposed technical approaches and award corresponding strengths. Unfortunately, when this award was subsequently protested, GAO did not agree with the Border Patrol’s inferential technique. As GAO explained, a reviewing agency may not credit a bid with technical strengths that are not present within the proposal.

Native Energy & Technology, Inc., B-416783 et al. (Dec. 13, 2018), involved a procurement for maintenance and repairs for the Customs and Border Patrol at various facilities in the East Texas region. Proposals were to be evaluated under three discrete factors: (1) technical-approach; (2) overall management approach; and (3) price. Award was to be made to the proposal representing the best overall value to the government.

The Border Patrol received nine proposals in response to the Solicitation. Offerors included Native Energy and EMCOR Government Services, the incumbent contractor. During its evaluation, CBP identified 5 unique strengths in EMCOR’s technical proposal that separated it from the approach proposed by Native Energy. These 5 discriminators served as the basis for the Border Patrol’s best value trade off, which concluded EMCOR’s proposal represented the best value to the government. Award was subsequently made to EMCOR.

Native Energy protested the award to EMCOR, alleging the Border Patrol unreasonably credited EMCOR’s proposal with strengths that were not present in EMCOR’s proposal. In response, the Board Patrol argued that it was reasonable for it to award such strengths because it was relying on its knowledge of EMCOR’s incumbent performance when evaluating EMCOR’s proposal.

GAO was not so convinced. To this end, GAO identified that 3 of the 5 strengths that served as discriminators between Native Energy and EMCOR’s proposals were unreasonably assessed based solely on the Border Patrol’s knowledge of EMCOR’s incumbent performance. These examples were:

  • EMCOR’s technical approach received a strength for its proposed weekly preventative maintenance forecasts. EMCOR’s proposal, however, never proposed weekly forecasts. Instead, this strength was assessed based on the Border Patrol’s experience with EMCOR’s performance under the incumbent contract. As GAO noted, however, “the strength assigned by the TET to the awardee’s proposal was essentially identical to a comment in the most recent Contractor Performance Assessment Reporting System (CPARS) report for the incumbent contract[.]” As such, GAO concluded this strength was improperly assigned.
  • EMCOR received another strength for its use of work control procedures and real-time cost tracking. The Border Patrol was particularly complimentary because EMCOR attached all supporting documentation to work orders. As with its maintenance reports, however, EMCOR’s proposal never stated it would attach all documentation to orders. Instead, the Border Patrol “reasonably inferred” EMCOR proposed to attach such documentation based on “personal knowledge” of how EMCOR had been performing previously. GAO concluded this strength was similarly unreasonable.
  • EMCOR was awarded a further strength for its use of a mobile application for job tracking and quality control monitoring. EMCOR’s proposal, however, did not explain how government personnel would be trained on using the mobile application, which was contrary to the PWS’s stated requirements. Nevertheless, the Border Patrol awarded a strength to EMCOR’s proposal because “[the contracting officer] has personal knowledge of EMCOR’s prior and continued training of CBP personnel on [the mobile application] and its capabilities as required by the PWS.” Accordingly, EMCOR was assigned a strength without receiving any corresponding weakness. This strength was also found to be unreasonably assigned.

Given that each of the above strengths were found to be unreasonably assigned, GAO sustained Native Energy’s protest. As GAO succinctly summarized, “we conclude that the agency unreasonably assigned these strengths based on the agency’s presumption that the awardee would perform the contract in a manner similar to its performance of the incumbent contract—even though the awardee did not specifically state it would do so in its proposal.” As such, the Border Patrol did not have a reasonable expectation that performance would occur in the manner corresponding to the assigned strengths. GAO recommended reevaluation of proposals and the potential reopening of discussions.

As GAO’s decision in Native Energy demonstrates, incumbency can only get a contractor so far. An agency may not rely on prior contract performance to serve as a predictor of future technical solutions. In essence, GAO’s decision reaffirms the duty of contractors to prepare well written proposals that expressly state all facets of technical performance.