Inconsistency Killed the Cat: GAO Sustains Protest Where Agency Inconsistently Evaluated Proposal

GAO generally defers to an agency’s judgment when it comes to the evaluation of proposals. This deference flags, however, when an agency evaluates competing proposals inconsistently; or, in other words, treats offerors disparately.

Let’s take a look at how GAO, in a recently sustained protest, found that the agency’s evaluation was unreasonable.

In Bristol Environmental Remediation Services, LLC, B-416980 et al. (Jan. 16, 2019), the Army Corps of Engineers solicited environmental remediation and munitions response services. The agency noted that it would evaluate the proposals on a best-value tradeoff basis, with non-price considerations being significantly more important than price. In all, the agency planned to award up to 10 fixed-price IDIQ task-order contracts.

After conducting discussions with offerors in the competitive range and obtaining revised proposals, the agency assigned all offerors identical ratings for their non-price factors, with one exception. For the least important non-price factor–which consisted of offerors’ proposing a technical approach for a sample project–the agency assigned identified two weaknesses in Bristol’s proposal and assigned it a marginal rating. (This marginal rating cost Bristol a contract, which the agency awarded to six other offerors.) As you can imagine, Bristol challenged the two assigned weaknesses.

The first weakness identified by the agency centered on Bristol’s plan to remediate a site for unexploded ordnance and make it acceptable for “unlimited use and unrestricted exposure.” The agency concluded that Bristol’s soil sampling protocol–a component of the work–would not allow Bristol to render the site acceptable under applicable law.

GAO deferred to the agency’s scientific conclusion; yet, its analysis didn’t stop there. It noted that another offeror’s soil sampling plan initially had also been assigned a marginal rating by the SSEB. But the SSA had changed that offerors’ rating to acceptable because “while the proposal did not fully explain the sampling protocol, the effort could be clarified during development of the sampling plan.”

With respect to this action, GAO found disparate treatment, holding:

Again, we offer no opinion regarding the scientific conclusion of the agency in connection with the evaluation of this proposal.  However, it appears from the record that both offerors were criticized for the adequacy of their sampling protocols.  Notwithstanding this apparent fact, the agency ultimately made award to one firm while eliminating the other firm from award consideration.  This amounts to disparate treatment of the offerors.  It is axiomatic that agencies are required to evaluate proposals on a common basis and in accordance with the terms of the RFP; agencies may not properly engage in disparate treatment of offerors in the evaluation of proposals. . . . We therefore sustain this aspect of Bristol’s protest.

GAO then went on to scrutinize the second assigned weakness.

As part of its plan to excavate a munitions trench and remove possible unexploded ordnance, Bristol proposed using earth moving machinery to excavate to certain depths, followed on by excavation using hand tools–particularly around areas where an anomaly suggested that unexploded ordnance was buried. The agency assigned a weakness to this approach because, in its view, it posed a hazard to worker safety. As a result, the agency concluded that only robotic equipment should be used.

Bristol, however, argued that its proposed approach was consistent with the RFP’s guidance. It pointed to an agency-issued publication, specifically incorporated into the RFP, that describes a procedure that for removing unexploded ordnance using earth moving machinery and hand tools. The manual did not suggest, or even mention, using robotic equipment for excavation.

Given that Bristol’s approach that tracked the engineering guidance–incorporated into the RFP–GAO held:

The record thus establishes that the protester’s proposal was compliant with the express terms of the RFP.  The agency therefore either unreasonably assigned the weakness to the Bristol proposal, or failed adequately to inform the protester during discussions of its true concern, namely, that the explosive nature of [certain] munitions would require use of robotic equipment.  Under these circumstances, we sustain this aspect of Bristol’s protest

As this decision shows, inconsistency is a good argument to raise with GAO. GAO doesn’t like when an agency evaluates competing proposals inconsistently. Nor does it like when an agency evaluates proposals in ways that are inconsistent with the solicitation.