Multiple-award task-order contracts are becoming an increasingly common feature of government contracting, and many carry very high ceiling values. This places participation in MATOC awards at a premium.
Unsurprisingly, base MATOC awards are being protested with some frequency before GAO. In a recent decision, GAO provided a unique solution for sustaining MATOC protests without causing substantial disruptions: simply adding the successful protester to the pool.
Millennium Corp., Inc., B-416485.2 (Comp. Gen. Oct. 1, 2018), involved a procurement for program management and technical support services by the Naval Air Warfare Center, Aircraft Division. The Solicitation was structured as a MATOC, and was entirely set-aside for service-disabled veteran-owned small businesses. The Navy anticipated awarding base contracts to the 20 most highly-rated proposals.
As relevant here, offerors were instructed to “self-score” their proposals against the evaluation criteria. The maximum possible score was 8,000 points. Millennium self-scored its proposal to have 6,375 points. During evaluation, however, the Navy only credited Millennium’s proposal with 5,975 points. The 400 point deficit resulted from the Navy declining to credit Millennium with one of its past performance CPAR examples.
The Navy subsequently issued awards to 21 offerors due to a tie between two offerors for the 20th award. Millennium was not among the named awardees. Importantly, the self-scoring of the subsequent awardees ranged from 7,625 to 6,150 points.
Millennium subsequently protested the evaluation of its proposal. Specifically, Millennium alleged that the Navy had misinterpreted the solicitation’s language regarding the attribution of CPAR evaluations under the past performance rating. According to Millennium, under the plain language of the solicitation, it should have received the additional 400 points for its CPAR reference and been an awardee under the MATOC.
GAO found Millennium’s argument persuasive. According to GAO, the Solicitation contained a latent ambiguity with respect to the way in which CPAR evaluations would be scored. Moreover, GAO concluded the solicitation did not support the narrower interpretation taken by the Navy. As such, GAO sustained Millennium’s protest.
Given that GAO sustained Millennium’s protest, GAO was also required to make recommendations as to how the evaluation errors could be corrected. In this respect, GAO took an interesting approach. Uncharacteristically, GAO recommended the Agency rescore Millennium’s proposal using Millennium’s interpretation of the solicitation. Then, “[i]n the event that Millennium’s revised score is at or above that of the 21st highest-rated offeror (i.e., 6,150 points), and reasonably-priced, we recommend that the agency simply make an additional award to Millennium.”
In a footnote, GAO acknowledged that this was a departure from its typical latent ambiguity recommendation:
While we generally recommend that the agency amend the solicitation to clarify the latently-ambiguous requirement—as such an ambiguity may preclude offerors from competing on a relatively equal basis—we see no need to disturb the existing awards in light of the ambiguity here.
GAO also determined that the issue encountered by Millennium was not common among the other offerors, and concluded there was “no basis to recommend that the Navy revise its solicitation and reopen the competition.”
GAO’s recommendation in Millennium appears to acknowledge the unique nature of MATOC awards—while there may have been issues with the evaluation of one offeror, those errors may not impact reasonableness of all other awardees. Under such circumstances, expanding the pool of awardees may be a more efficient option than recommending the awarding agency scrap its entire award. That being said, the unique facts of Millennium undoubtedly played a role in GAO’s recommendation, so it remains to be seen how frequently GAO will make similar recommendations going forward.
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