Government Contracts & Investigations

When It Comes to Solicitations, Stick to the Script

By | July 23, 2020

While some rules may seem basic enough to overlook, the Government Accountability Office (GAO) decision sustaining the protest in Avionic Instruments LLC (Avionic), B-418604, B-418604.2 (June 30, 2020) reminds us of a fundamental tenet in government contracting for both agencies and offerors: abide by the terms of the solicitation.

The underlying solicitation, a request for proposals (RFP), was issued by the Department of the Navy, Naval Air Systems Command for the development and production of certain equipment, a replacement digital inverter, for the UH-1Y helicopter. Essentially, inverters convert the direct current of a helicopter into an alternating current that can be used for alternative electronic needs. The solicitation was issued pursuant to Federal Acquisition Regulation (FAR) part 15, providing for full and open completion. Ultimately, the RFP contemplated the award of a fixed-price contract with a base award, as well as options.

The RFP provided that award would be made on a best value basis based on technical and price factors, with the technical factor having greater importance. Under the technical factor the agency was to evaluate the following elements: (1) overall design approach; (2) approach to qualification testing; (3) logistics planning; (4) an experience risk assessment of qualification testing and achieved reliability for similar aircraft applications of the prime and subcontractors; and (5) small business strategy. Further, each proposal would be given a technical rating and a technical risk rating, where the former corresponded with compliance with the solicitation’s requirements, and the latter corresponded with the risk associated with the technical approach. The solicitation clarified that the experience element would only factor into the technical risk rating.

The agency received proposals from Avionic and Physical Optics Corporation (Physical Optics). Avionic’s proposal was evaluated as having three risk reducers, which would be advantageous to the government during contract performance. Two of Avionic’s risk reducers were under the design element and one was under the experience element. Physical Optics’ proposal, which included a major subcontractor, was assessed as having four risk reducers: one under the design element; one under the qualification testing element; and two under the experience element. Neither Avionic’s nor Physical Optics’ proposals were assessed any strengths, weaknesses, significant weaknesses, deficiencies, or uncertainties under the technical factor. Because the proposals were evaluated as technically similar, Physical Optics’ lower-priced proposal was selected for award, and Avionic filed this protest.

Avionic raised issues with several aspects of the agency’s technical evaluation, including that the record contained insufficient support for the agency’s risk assessment with respect to prior experience.

With regard to the awardee’s lack of experience, Avionic’s argued that the agency unreasonably failed to consider the fact that Physical Optics and its major subcontractor did not provide, as required by the RFP, prior statements of work or performance work statements (PWS) and specifically cite to which portions corresponded to the tasks under the current solicitation’s PWS. While Physical Optics’ proposal contained a cross reference matrix with the current PWS requirements and its prior experience related to these requirements, Avionic noted that several of these prior experience references were not found in the prior contracts that Physical Optics’ provided.

The agency responded by arguing that simply because Physical Optics’ cross reference matrix did not indicate certain experience this does not mean that Physical Optics did not have such experience. Further, the agency submitted a supplemental report where it argued that it looked to other places in Physical Optics’ proposal to look for the relevant experience, even though Physical Optics’ did not claim such experience; however, this post-protest explanation was not supported by the contemporaneous record.

The GAO sided with the protester, and sustained the protest on this ground, as it found that the contemporaneous record did not show whether the agency actually evaluated either Avionic’s or Physical Optics’ proposals to determine compliance with the solicitation’s PWS requirement.

The GAO recommended that the agency reevaluate proposals and make a new, documented best value determination consistent with the GAO’s decision. The lesson for offerors and potential protesters: An agency’s compliance with the evaluation terms of the solicitation, and your compliance with the same in your proposal, is crucial to issuing a valid award. Accordingly, maximize the clarity in your proposal to indicate as precisely as possible how it meets the solicitation’s terms.

Contact Judith Araujo for more information.