A SDVOSB was improperly downgraded for not identifying its subcontractors in its proposal, according to a recent GAO bid protest decision.
In Coburn Contractors, LLC, B-408279.2 (Sept. 30, 2013), the GAO held that the VA improperly applied an unstated evaluation criterion by requiring that the protester identify its subcontractors, because according to the solicitation, a subcontractor list was only required at the task order level.
The Coburn Contractors case involved a VA SDVOSB set-aside for the award of an IDIQ contract under which the successful offeror would perform construction and maintenance services at VA Medical Centers in Alabama. The solicitation included three evaluation factors: experience/capability, past performance, and price.
None of the evaluation factors stated that offerors were to submit a list of proposed subcontractors with their proposals. Instead, the solicitation stated that the awarded contractor “shall submit a list of subcontractors to be used on each individual task order.”
In its evaluation of the proposal submitted by Coburn Contractors, LLC, the VA identified a single weakness in Coburn’s proposal under the experience/capability factor: that Coburn’s proposal did not include a list of subcontractors. The VA assigned a “Satisfactory” adjectival score to Coburn for that factor. Abrams Group Construction, LLC received a “Good” score on the experience/capability factor. The VA awarded the contract to Abrams, despite its higher price.
Coburn filed a GAO bid protest. Coburn alleged, in part, that the VA had applied an unstated evaluation criterion by requiring that Coburn submit a list of subcontractors with its proposal. The GAO agreed with Coburn. The GAO wrote, “[n]owhere does the RFP instruct or otherwise suggest that offerors were to identify or list proposed subcontractors, either under the experience/capability evaluation factor, or the past performance and price factors.”
The GAO rejected the VA’s argument that Coburn was not prejudiced by the VA’s error. “Contrary to the agency’s arguments,” the GAO wrote, “it is uncertain whether Coburn’s experience/capability rating, and ultimately Coburn’s overall rating, would have remained the same, where only one weakness was assessed, improperly, against Coburn’s proposal, and where it was otherwise assessed multiple strengths.” The GAO concluded, “we sustain Coburn’s protest that the agency applied an unstated evaluation criterion in evaluating the protester’s technical proposal.”
As I described in a recent post, agencies have some discretion to evaluate offerors on matters not expressly identified in the solicitation, so long as those matters are logically related to the express evaluation factors. However, as the Coburn Contractors case demonstrates, when an agency does not “instruct or otherwise suggest” that offerors are to provide certain information, it is erroneous and improper for the agency to downgrade an offeror for failing to provide that information.