Typically, agencies will provide a handful of evaluation factors, sometime more, in a solicitation. Common evaluation factors are technical, past performance, and cost. A recent protest decision looked at a solicitation that contained separate factors for 1) offeror’s technical capability and 2) staffing and management approach. The question was, can an agency combine its evaluation for two different factors? If it does mix the two evaluation criteria, is that enough to sustain a protest?
In Spectrum Healthcare Resources, Inc., B-421325 (Mar. 21, 2023), GAO reviewed a protest by Spectrum (or protester) of award to Dentrust Dental International (Dentrust or awardee) of a Federal Emergency Management Agency (FEMA) contract for medical and behavioral health services. The solicitation sought “medical professionals to provide Medical and Behavioral Health Services to FEMA employees” for services like “occupational health center services, medical employability and fitness for duty consultations, immunizations and travel medication.”
There were four evaluation factors: (1) technical capability; (2) staffing and management approach; (3) past performance; and (4) price. FEMA rated Dentrust higher on technical capability and past performance than Spectrum and Dentrust was cheaper. Plus, “the strengths that Spectrum provides in [staffing and management approach] do not warrant or justify” Spectrum’s higher price.
For Technical Capability, the Solicitation required information “detailing their EXPERIENCE by addressing” five topics, including “deploying hundreds of medical staff capable of safely providing medical and behavioral health services to dispersed locations within a 96-hour period”.
Spectrum got two weaknesses:
- “The vendor did not adequately outline how they can deploy the medical personnel/labor categories (except nurses) within the 96-hour timeframe outlined in the PWS.”
- “While the vendor indicated on the chart on pg. ii that it can deploy behavioral health staff within 96 hours, the proposal does not illustrate how it plans to do that and how it has previously met that timeframe.”
Under GAO precedent, an agency’s evaluation must be “consistent with the solicitation’s evaluation criteria,” and this makes common sense. Why even have criteria and a supposedly level playing field if an agency doesn’t have to follow them. To review evaluation criteria, GAO will look at “the solicitation as a whole and in a manner that gives effect to all of its provisions. “This decision rests on the specific evaluation language for the technical capability factor, on the one hand, versus the staffing and management approach, on the other.
Here, as part of the technical capability factor, offers were to
detail “their EXPERIENCE” and requiring offerors to use “specific examples that are verifiable” from up to five reference contracts in describing their technical capability. Additionally, FEMA ignores the solicitation’s explanation that “[m]ore weight may be given to experience serving as the prime contractor” when evaluating an offeror’s technical capability. Read together, the instructions and evaluation criteria indicate that offerors were limited to describing their technical capability through the lens of verifiable past experience. Thus, the agency’s argument that offerors “without experience in certain areas were not excepted from showing their capability” is inconsistent with the terms of the solicitation.
GAO interpreted the Solicitation as requiring “that while an offeror’s technical capability was to be evaluated based on its verifiable experience, under the staffing and management approach the agency specifically would assess an offeror’s plan to achieve the objectives of the IDIQ SOW.’” So, experience for the first factor and a plan for the second factor. Under this interpretation, GAO found unreasonable the agency’s assessment of the two weaknesses under the technical capability factor for Spectrum’s failure to address how it would deploy personnel–i.e., its “plan to achieve the objectives” of the SOW, as the solicitation required the agency to assess offerors ability to meet the requirements of the SOW–or how offerors planned to perform–under the staffing and management approach factor.
The agency also conflated the “the evaluation criteria under the technical capability and staffing and management approach factors” in responding to Spectrum’s challenge of 5 other weaknesses. For instance, the Spectrum’s proposal “notes that it provides FEMA with weekly reports under its current contract and that [Spectrum’s teaming partner] provides special reports within three business days of request, it does not address how it proposes to provide the daily reporting requested in the PWS.” GAO found this again mixed the experience portion of the technical factor with the planning portion of the management factor: “the evaluators did not understand that the evaluation of technical capability was to be in the context of an offeror’s past experience with the factor’s identified topic areas.”
GAO recommended reevaluation of the proposal under the technical capability factor. This protest shows that agencies must keep their evaluation criteria straight. They cannot take aspects of one evaluation criteria, and apply them to evaluation for a distinct evaluation factor.
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