B-400295; B-400295.2, Helicopter Transport Services LLC, September 29, 2008
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Decision
Matter of: Helicopter Transport Services LLC
David
M. Nadler, Esq., Scott Arnold, Esq., and David Y. Yang, Esq., Dickstein Shapiro
LLP, for the protester.
Alan I. Saltman, Esq., Saltman & Stevens, PC, for Erickson Air-Crane, Inc.,
the intervenor.
Elin M. Dugan, Esq., Department of Agriculture, for the agency.
Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that agency improperly evaluated proposals under one of four technical factors on a pass/fail basis is sustained where the solicitation, by stating that the four technical factors were listed in descending order of importance and calling for a price/technical tradeoff, contemplated that each technical factor would be evaluated qualitatively.
2. Protest that agency improperly evaluated protester’s past performance is sustained where the record contains no contemporaneous documentation of the oral discussion that the agency states provided the basis for the evaluation, and the evaluators relied on unidentified written documents.
DECISION
Helicopter Transport Services
LLC (HTS) protests the award of contracts to Erickson Air-Crane, Inc. and
Columbia Helicopters, Inc. under request for proposals (RFP) No.
AG-024B-S-08-9003, issued by the U.S. Forest Service,
BACKGROUND
On
The solicitation identified four technical factors, listed in descending order of importance: aircraft technical capability, safety/risk management, past performance, and organizational experience.[2] These four non-price factors, when combined, were significantly more important than price. RFP at 189. Past performance included four subfactors of equal weight, described as follows:
a) that you [the offeror] were capable, efficient, and effective
b) that your performance conformed to the terms and conditions of your contract
c) that you were reasonable and cooperative during performance
d) and that you were committed to customer satisfaction.
RFP at 189. The RFP
specified that the agency’s evaluation of past performance would include the
offeror’s contract performance for the years of 2005-2007. In preparing their proposals, offerors were
instructed to utilize Form E-6, “Offeror’s Past Performance and Organizational
Experience,” included in the RFP. Awards
were to be made to the offerors whose proposals were technically acceptable and
“whose technical/price relationships [were] the most advantageous to the
Government.”
Thirty-four offerors submitted proposals, offering 88 helicopters.[3] The agency scored the proposals under the technical factors using a scale of one to five points--best to worst--corresponding to the adjectival ratings of exceptional, acceptable, neutral, marginal, and unacceptable. The agency provided no further definitions for the ratings. As explained further below, under the most important technical factor, aircraft technical capability, proposals could receive one of only two possible scores, two points (acceptable) or five points (unacceptable). Because of the complicated calculations required to make 34 simultaneous awards, where CLINs received multiple offers and aircraft were offered for multiple sites, the agency employed a computer program, called the Optimization Model, to assist it in making price/technical tradeoffs. CO’s Supplemental Statement of Facts at para. 3.
The protester’s proposal contained the requested Form E-6, which listed four Forest Service contracts, one from 2007 and three from 2005, as past performance references. The references contained only the contract number and not the required contact information. The protester’s past performance documentation also included certificates of appreciation from 2007, a letter of appreciation from 2002, and an undated Forest Service evaluation report.
HTS’s proposal received the following technical scores: aircraft technical capability, [DELETED]; safety/risk management, [DELETED]; past performance, [DELETED]; and organizational performance, [DELETED]. Multiplying those point scores by the assigned weighted averages, HTS’s proposal received an overall technical score of 2.56. The technical evaluation team’s (TET) summary comments on the protester’s proposal stated, in full:
[DELETED]
AR, Tab 5, Memorandum from TET
to Contracting Officer (CO),
The source selection authority adopted the recommendations of the TET without comment, awards were made, including four to HTS,[4] and this protest followed. Performance of the contested contracts has been stayed.
DISCUSSION
The protester challenges the
award of Item Nos. 3, 7, and 8 to Erickson, and Item No. 6 to
Factor 1--Aircraft Technical Capability
HTS contends that the agency improperly failed to qualitatively evaluate the offerors’ proposals under technical factor 1, aircraft technical capability, even though the RFP identified it as the most important technical evaluation factor. The agency asserts that the RFP provided that aircraft technical capability would be evaluated on a pass/fail basis, and that it was reasonable to assign all proposals that were rated acceptable or better the same score of two points (acceptable).
Where a dispute exists as to the
meaning of solicitation language, we will resolve the matter by reading the solicitation
as a whole and in a manner that gives effect to all provisions of the
solicitation. See Honeywell
Regelsysteme GmbH, B-237248,
As noted above, the solicitation
listed all four technical factors and stated that, “when combined, [they were]
significantly more important than price.”
RFP at 189. The solicitation also
stated that those four factors were “listed in descending order of
importance.”
The agency argues that making
factor 1 a go/no-go criterion does not diminish its importance in the
evaluation scheme. We disagree. Assigning all technically acceptable offers
the same score for the primary technical factor has essentially the same effect
on the evaluation ratings as not ranking the most important factor at all, an
action we found improper in Lithos Restoration, Ltd.. Assigning a score of two points to all
technically acceptable offers created an evaluation rating floor; all offers
would start off with the same points for that factor. This evaluation scheme effectively
neutralized the influence of the most important factor and, as noted above,
made the evaluation discriminators the three less important technical factors
the determining factors for award.[6]
Past Performance
The protester alleges that the
agency improperly focused its evaluation on the final year of the 3 years of
past performance that should have been considered, and that the agency has not
produced the necessary contemporaneous documentation to support the score
[DELETED] given the protester. As a
general matter, the evaluation of an offeror’s past performance is a matter
within the discretion of the contracting agency, and we will not substitute our
judgment for reasonably based past performance ratings. In determining whether a particular evaluation
conclusion is reasonable, we examine the record to determine whether the
judgment was reasonable and in accord with the evaluation criteria listed in
the solicitation. Abt Assocs., Inc., B-237060.2,
According to the agency, the TET
members relied primarily on an oral discussion of their individual experiences
with HTS in arriving at the past performance rating of [DELETED]. Supplemental AR at xviii. There is no contemporaneous documentation of
that discussion. In an evaluation that
takes into account the agency’s own knowledge of offerors’ performance, the
fundamental requirement that evaluation judgments be documented in sufficient
detail to show that they are reasonable and not arbitrary must still be
met. Omega World Travel, Inc., B‑271262.2,
The agency argues that evidence
of HTS’s past performance, first introduced into the record as part of the
agency report on the protest, supports the reasonableness of the evaluation,
citing Omega World Travel, Inc..[7] In that case, however, the record showed that
the agency evaluators relied in their deliberations on specific evaluation
material subsequently produced in the protest record. Here, there is no contemporaneous account of
the discussion of HTS’s past performance, let alone one that references the
evaluators’ reliance on any of the written documentation the agency supplied in
response to the protest. The TET chair
asserts that the team based its evaluation of the protester’s past performance
on “the written evaluations that it had,” Declaration of TET Chair at para.15, but
fails to identify any specific document or to state whether the evaluators
considered any of the contracts listed in the protester’s proposal. In contrast, the TET chair goes into
considerable detail, in response to the protest, recounting the personal
experiences of the TET members that contributed to the rating.
As discussed above, evaluations must be documented in sufficient detail to show that they were not arbitrary. FAR sections 15.305(a), 15.308. Here, without any contemporaneous documentation of that oral evaluation, and with no record, contemporaneous or otherwise, of what contract performance information was considered and how much relevance the information was accorded, we have no basis on which to conclude that the past performance evaluation was reasonable.[8]
PRICE/TECHNICAL TRADEOFF
Because we are sustaining the
protester’s challenges to the agency’s evaluation of proposals under factor 1
on a go/no-go basis and the evaluation of HTS’s past performance, we need not
address the protester’s challenge to the agency’s price/technical trade-off. In this regard, we recognize that the agency,
faced with evaluating a substantial number of proposals from multiple offerors,
decided to use a computer program to assist in the evaluation and selection
decisions. Under these circumstances, an
agency’s reasonable attempts to simplify the source selection process are not
objectionable. Apex Marine Ship Mgmt.
Co., LLC; American V-Ships Marine, Ltd., B-278276.25; B-278276.28; Sept.
25, 2000, 2000 CPD para. 164 at 21. Moreover, when numeric scores are
reasonable and supported by the contemporaneous narrative record, an agency may
use the results of the numeric scoring as indicative of whether evaluated
technical superiority is worth the associated cost premium.
RECOMMENDATION
For the four contested awards, we recommend that the agency either qualitatively evaluate the eligible aircraft under technical factor 1, or revise the solicitation to state that it will evaluate factor 1 on a no/no-go basis and solicit revised proposals for the challenged CLINs. In any event, we also recommend that the agency reevaluate HTS’s past performance. We recommend that the agency then conduct and document a new source selection decision for those four CLINs and make award to the offeror(s) whose proposal(s) are found to represent the best value to the government. We also recommend that the protester be reimbursed its costs of filing and pursuing its protest, including reasonable attorneys’ fees.
The protest is sustained.
Gary L. Kepplinger
General Counsel
[1] In its comments on the agency report (AR), the protester abandons one ground of protest, that the agency misevaluated HTS’s proposal under the safety/risk management factor.
[2]
In its evaluation of proposals, the agency weighted these factors at [DELETED]
percent, respectively. The protester
asserts that where, as here, the solicitation states that evaluation factors
have been listed in “descending order of importance,” the percentage weights
assigned to the evaluation factors must form a “reasonable downward progression
of relative weights,” citing A & W Maint. Servs., Inc., B‑255711,
[3] The agency found eight helicopters unacceptable; consequently, only 32 vendors offering a total of 80 helicopters had their proposals evaluated beyond factor 1, as explained below.
[4] HTS offered a total of [DELETED] helicopters and was awarded four contracts. Of the other [DELETED] helicopters that were offered, one was disqualified from further competition after being rated unacceptable under factor 1 for failure to submit complete documentation. The protester challenges that disqualification in its comments on the supplemental agency report. The protester states that the disqualified helicopter was proposed for the CLINs that are the subject of this protest. The agency report contained listings of all of the helicopters considered for award for each of those CLINs. The unacceptable helicopter was not on any of those lists, and thus the protester should have known that it had been found unacceptable. Because this ground of protest was filed more than 10 days after the protester received the agency report, it is untimely. See Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(2) (2008).
[5] Following receipt of the agency report, the protester withdrew its challenge to the award of Item No. 18.
[6] Prejudice is an essential element of a viable protest. Lithos Restoration, Ltd., supra at 5. The protester has asserted that, but for the agency’s failure to qualitatively evaluate proposals under factor 1, the aircraft offered by HTS would have been scored as superior to other aircraft, thus making HTS’s proposal more competitive. On the record, we think there is a reasonable possibility that the agency’s adherence to the evaluation scheme announced in the solicitation would have resulted in additional awards to the protester. See id. at 5-6 (noting that a “reasonable possibility of prejudice is sufficient basis for sustaining a protest”). While the intervenor asserts that our Office should impose a higher standard of proof of prejudice as a prerequisite for sustaining this protest, we disagree.
[7] In support of the evaluation, the agency report contains the following past performance documentation: correspondence regarding a [DELETED] that began in 2005; a 2005 evaluation where the protester scored [DELETED] points out of a possible 50; an undated summary of [DELETED] that occurred in 2007; and various evaluations of contract performance from 2007. AR, Tab 6, Past Performance Documentation at 47-80. It is not clear from the record whether the evaluation from 2005 is for one of the contracts included in the protester’s proposal. It is also not clear whether any of these documents were among those considered by the TET. Finally, it is unclear on the record whether the [DELETED] should properly be considered in the agency’s past performance evaluation.
[8] The protester supplied two favorable evaluations that it asserts should have been included in the agency’s past performance evaluation but were not. Both of those documents, however, are dated after the time that the agency conducted its technical evaluations. See Comments on the Supplemental AR, Exhs. A & B.