Government Contracts Weaknesses under Experience Factor Were Unreasonable
Tuesday, December 1, 2020

Weaknesses under Experience Factor Were Unreasonable

By Government Contracts Editorial Staff

The evaluation of the protester’s experience was unreasonable because it was based on three improper weaknesses. The protest arose from a contract award for environmental remediation services and response actions. The request for proposals’ previous experience technical evaluation factor required offerors to provide examples of four different types of projects. For the first project type, offerors had to provide an example of a hazardous, toxic, and radioactive waste project, valued at $500,000 or more, that demonstrated “successful outcomes in rapid response actions with commencement of [] on-site remediation efforts within 14 days of contract/task order award.” After reviewing the protester’s time-and-materials task order for emergency response actions issued in response to Hurricanes Irma and Maria, the government assigned the protester three weaknesses. According to the government, it was “difficult to determine when personnel actually started on-site remediation efforts or whether those remediation efforts actually started within 14 days”; it was unclear whether the work met the RFP’s definition of “project”; and the protester did not explain the $1 million task order’s “significant cost growth” to $11.25 million.

Inconsistent Evaluation. The Comptroller General found the weaknesses were unreasonable and resulted from disparate treatment and the application of unstated evaluation criteria. For the first weakness, the government argued the protester’s statement that “two Response Managers were boots-on-the-ground to begin site remediation” within ten days did not signal the start of on-site remediation within the meaning of the RFP, but the government did not support the argument or sufficiently explain why it rejected the protester’s statement that remediation began within ten days. For the second weakness, the government argued the example did not comply with the RFP’s definition of “project,” because the work was executed on different islands and therefore was not performed on a single installation or facility. However, one of the awardee’s examples—a ship decontamination project—was performed on four different ships and at two different shipyards, and nothing in the record indicated the government considered whether this example satisfied the RFP’s definition of “project.” The government evaluated the awardee’s proposal in a more expansive manner and applied a more exacting standard to the protester.

More Unequal Treatment. Finally, with respect to the “significant cost growth” of the protester’s task order, the RFP did not require an offeror to explain any difference between the contract award amount and the final contract cost at completion. Further, the government concluded the protester’s project presented a weakness despite the statement in the protester’s proposal that the project was completed within the proposed budget. The government also concluded the awardee’s HTRW project example was awarded at $149,498 and had a final completion cost of $1,047,679, but the government found a statement in the awardee’s proposal—“Scope Added”—was sufficient to explain the cost growth on all four of its projects. These simultaneous conclusions indicated this weakness was also unreasonable and disparate. The Comptroller General concluded by finding the past performance evaluation departed from the RFP’s evaluation scheme and the evaluation errors resulted in a flawed best-value tradeoff decision. Sustaining the protest, the Comptroller General recommended the government reevaluate the proposals and make a new award decision or amend the RFP to accurately reflect its needs. (Weston-ER Federal Services, LLC, 35 CGEN ¶116,970)

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