“I’m thinking of a number between one and ten–can you guess what it is?”
It sounds like the beginning of an amateur magic trick, or perhaps a segment on the ever-popular Colbert Report. But in a recent GAO bid protest decision, the stakes of the guessing game were a lot higher. In that case, the agency developed an internal estimate of the staffing needed to successfully complete the contract work, but did not disclose the estimate to offerors–then downgraded two offerors for failing to “guess” the same staffing numbers as the agency.
Unfortunately for the agency, the GAO refused to play along.
The GAO’s decision in Orion Technology, Inc.; Chenega Integrated Mission Support, Inc., B-406769, B-406769.2, B-406769.5 (Aug. 22, 2012), involved an Army contract for installation support services. The solicitation called for the agency to evaluate a number of factors, including offerors’ staffing. The solicitation called for award to be made to the lowest-priced, technically acceptable offeror.
After evaluating competitive proposals, the Army made award to Advanced Technology Logistics, Inc. Two unsuccessful competitors filed GAO bid protests. Both competitors contended that their evaluated prices were lower than ATL’s, but that the Army had relied upon an undisclosed staffing estimate to determine whether offerors’ proposed staffing was adequate. The protesters complained that whenever a proposal included less than the number of full-time equivalents used in the undisclosed staffing estimate, the Army automatically assigned a deficiency, causing the protesters’ proposals to be rejected as unacceptable.
Summarizing its prior case law in this area, the GAO wrote that, “[w]hile an agency properly may rely on its own estimates of the manning levels necessary for satisfactory performance, absolute reliance on estimates can have the effect of arbitrarily and unfairly penalizing an innovative or unusually efficient offeror.” The GAO continued, “[t]hus, it is inappropriate to determine the acceptability of proposals by the mechanical application of undisclosed government estimates, since doing so fails to assess whether a firm’s proposed workforce is particularly skilled and efficient, or whether, because of a unique approach, a firm could satisfactorily perform the work with different staffing than estimated by the agency.”
The GAO agreed with the protesters that “in every case” where the Army identified a weakness or deficiency in offerors’ staffing, it was because the proposed staffing was less than the amount identified in the government estimate. The GAO noted that “there is no evidence in the contemporaneous record that the agency considered whether any other approach to staffing other than that reflected in its undisclosed government estimate might be adequate.” Instead, the evaluation documentation indicated that the Army believed that it “needed” or “required” certain staffing levels, and compared proposals to those identified “needs.”
The GAO rejected the Army’s contention that it had advised the protesters during discussions that their staffing levels were inadequate. According to the GAO, these discussions did not go far enough because the Army failed to identify the staffing estimate. Because “the agency believed that the undisclosed government estimate reflected its minimum requirements . . . it was required to disclose this to the offerors during discussions rather than leaving the offerors to guess what staffing would satisfy the government’s requirements.” The GAO sustained the protests.
The Orion Technology GAO bid protest demonstrates that while procuring agencies may develop their own internal staffing estimates, and use those estimates in evaluations, agencies cannot fail to take into account offerors’ unique approaches to the work. If, as was the case here, an agency believes that a certain minimum staffing level is required, that fact should be disclosed to offerors. In other words, according to the GAO, leave the guessing games to magicians and Stephen Colbert.