Government Contracts Five Assessed Weaknesses Were Unreasonable
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Thursday, March 7, 2019

Five Assessed Weaknesses Were Unreasonable

By Government Contracts Editorial Staff

The rejection of the protester’s proposal for environmental remediation and munitions response services was improper because the record showed the evaluation was unreasonable and inconsistent with the terms of the request for proposals. The protester submitted the lowest price among the competitive range offerors. However, under the fifth and least important evaluation factor, sample project technical approach, the government assigned the protester a marginal rating based on five identified weaknesses. The weaknesses were comparatively minor concerns that did not render the protester’s proposal unacceptable or unawardable, and it was the combination of weaknesses that apparently led the government to assign the protester a marginal rating and not award it one of the ten contracts contemplated by the RFP.

Disparate Treatment. In the agency report, the government conceded that three of the five identified weaknesses were improper and should not have been assigned, so the protest focused on the two remaining weaknesses. The first of the two weaknesses involved a sample project that required offerors to provide a comprehensive plan to respond to a trench that contained potentially unexploded ordnance. The government found the protester’s proposed “lot” size was too large to accomplish soil sampling in an acceptable manner. The Comptroller General “offer[ed] no opinion regarding what essentially amount[ed] to a scientific conclusion … regarding the adequacy of the proposed solution.” However, the record showed disparate treatment. The protester and one of the awardees were both criticized for the adequacy of their sampling protocols, but the government ultimately made an award to one offeror while eliminating the other from consideration.

Inconsistent with RFP. The remaining weakness related to how the protester proposed to excavate the munitions trench and remove unexploded ordnance. The government was concerned with the safety of the protester’s plan to have technicians enter the trench with hand-held tools and excavate using earth moving machinery. The evaluators expressly concluded using robotic excavation equipment would be the appropriate solution, but the protester’s proposed approach appeared to be consistent with the engineering guidance included in the RFP. The RFP required compliance with a government-issued publication entitled “Explosives Safety and Health Requirements,” which did not mention using robotic equipment for excavation of buried munitions. Finally, the record showed the government made awards to offerors that all had submitted prices significantly higher than the protester’s. In light of these considerations, the Comptroller General sustained the protest and recommended the government reevaluate the protester’s proposal and reconsider the protester’s eligibility for award. (Bristol Environmental Remediation Services, LLC, 34 CGEN ¶116,283).

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