This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its January 2019 decision in Bristol Environmental Remediation Services, LLC, the U.S. Government Accountability Office (GAO) ordered a re-evaluation after finding that evaluators conducted an improper technical assessment of the complainant’s proposal. The dispute dealt with a Request for Proposals (RFP) issued by the Department of the Army for environmental remediation and munitions response services. The complainant alleged that the agency unreasonably rejected its proposal. The GAO agreed, finding that the complainant’s proposal was rejected for concerns over prior experience when another proposal was selected after evaluators raised similar concerns about that winning proposal while providing no explanation for the disparate treatment. Furthermore, the GAO found that the complainant’s proposal was scored lower for failing to propose robotic bomb detection equipment when robotic equipment was never specified in the RFP:
Bristol argues that its methodology was consistent with the engineering guidance included in the RFP. Bristol therefore argues that, either this is not, in fact, a weakness because its approach was consistent with the guidance provided in the RFP, or the agency failed to afford it meaningful discussions, since, apparently, only a robotic equipment solution would have been considered acceptable to the evaluators, and such an approach was at variance with the guidance included in the RFP.
We agree with the protester that its proposed approach appears consistent with the engineering guidance included in the RFP. The solicitation specifically incorporates, and requires compliance with, an agency-issued publication entitled “Explosives Safety and Health Requirements” designated as publication EM-385-1-97. RFP at 25-26. Among other things, that publication specifically describes a procedure for intentionally removing buried munitions using an armored EMM, and limiting the use of the EMM to circumstances where any identified anomaly is at least 12 inches below the area being excavated, after which excavation is to be performed by hand. AR, exh. 20, EM-385-1-97, at 70-72. That engineering manual makes no mention of using robotic equipment for excavation of buried munitions.
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 the BLU-107 munitions would require use of robotic equipment. Under these circumstances, we sustain this aspect of Bristol’s protest.
In sum, the record shows that the Bristol proposal was eliminated from consideration for award because the agency identified some five weaknesses associated with its response to the sample project. Of those five weaknesses, the agency concedes that three were erroneously assigned. Of the remaining two weaknesses, one–Bristol’s proposed soil sampling methodology–appears largely to be identical to a weakness assigned to one of the awardees’ proposals. However, the SSA concluded for that offeror that such a weakness was not a legitimate concern or a material impediment to award. It follows that a largely identical weakness in the Bristol proposal also should not be a legitimate concern or an impediment to making award to the protester. The final remaining weakness identified by the agency is one that either unreasonably was assigned in light of the technical materials included in the RFP, or was a concern the protester could not reasonably have known about that the agency failed to bring to its attention during discussions. Finally, as noted earlier, the record shows that the agency made award to firms that all had submitted prices significantly higher than the price offered by the protester, and in at least one instance, made award to a firm proposing a price more than three times higher than the price offered by the protester. In light of these considerations, we sustain Bristol’s protest.
The GAO therefore ordered a re-evaluation of the complainant’s proposal.
As this case illustrates, if a purchasing institution wants to apply specific minimum technical requirements as a basis for accepting or rejecting proposals, it must expressly disclose those requirements in its solicitation document to meet its transparency and fairness duties. The failure to disclose threshold technical evaluation requirements can result in the failure to subsequently defend evaluation and award decisions.
