DOE Silent on Plans for LM Support Contract After Successful Protest

6/13/2014

 

Almost a month after the Government Accountability Office called on the Department of Energy to re-evaluate two bids submitted for the new Office of Legacy Management support services contract in response to a successful protest, the Department’s plans for making a new award decision remain unclear. DOE did not respond this week when asked if it would follow the GAO’s May 22 recommendation to re-evaluate the bids submitted by Portage, the Department’s choice for the new contract; and Navarro Research and Engineering, which filed the successful protest. DOE did not respond when asked if it planned to replace the Source Selection Official for the procurement, reportedly David Geiser, director of the Office of Legacy Management; or if it planned to make any changes to the Source Evaluation Board, the membership of which has not been made public. DOE also did not respond when asked how it planned to again extend incumbent S.M. Stoller’s contract, which is set to expire at the end of the month. 

 

In a written response this week, Navarro Research and Engineering President Susana Navarro-Valenti said, “We are pleased that the GAO sustained our protest. The length of this procurement, which is the largest small business opportunity in DOE, has been a significant burden on small businesses and we eagerly await a prompt implementation of the GAO recommendations.”

 

 

The new LM contract, which was set aside for small businesses, has been valued at approximately $251 million over five years. DOE first selected Portage as the winner of the contract in April 2013, prompting initial protests by Navarro and a team made up of Wastren Advantage and Stoller (WAI-Stoller Services, LLC). Stoller was unable to lead a bid of its own for the new contract because it no longer met the size standard for the small business procurement, leading it to join the team led by WAI. 

 

In May 2013, DOE chose to take corrective action in response to the protests and re-evaluated bids, leading to a second decision early this year to again award the new contract to Portage. That action triggered a second round of protests from Navarro and WAI-Stoller. In its May 22 decision, the GAO sustained Navarro’s protest, but chose to deny WAI-Stoller’s.

Both Portage and WAI declined to comment this week.

 

 

According to the GAO’s decision on the Navarro and WAI-Stoller protests, which was publicly released this week, Navarro scored higher than Portage after DOE re-evaluated proposals after the first protest. Navarro’s bid scored 940 out of 940 available points and received an “excellent” overall technical rating. Portage’s bid also received an “excellent” overall technical rating, but earned 920 out of 940 points, with the contractor having received 80 out of 100 available points in the area of past performance. Navarro’s bid was slightly more expensive than Portage’s—approximately $260 million versus $251 million, according to the GAO decision.  

 

WAI-Stoller Services received 840 points out of the 940 available for its bid, and was given an overall technical rating of “good,” according to the GAO decision. The WAI-Stoller team received 320 points out of the available 400 in the area of technical approach; and 80 points out of 100 in the area of past performance. The WAI-Stoller bid, at approximately $244 million, was less expensive than those proposed by Portage and Navarro.

 

 

While both Navarro and Portage received the same adjectival ratings for their bids, DOE decided that “Portage’s proposals contained certain discriminators that set it apart from Navarro’s proposal,” the GAO decision states. “Overall, the SSO determined that based on several discriminators, Portage’s proposal was superior to Navarro’s under the three most important technical factors, notwithstanding the same adjectival ratings, and therefore, represented the best value to the government,” the GAO said.

 

In its second protest, though, Navarro charged that the discriminators used to support the decision to award the contract to Portage were “unreasonable and not supported by the record”—an allegation the GAO ultimately supported. “Upon review, the record reflects that several of these discriminators do not withstand scrutiny, and were the result of unreasonable conclusions, unequal evaluations, or inaccurate judgements regarding the differences between the two proposals. As a result, we conclude that the best value decision was flawed,” the GAO said.

 

 

Among the discriminators Navarro challenged, according to the GAO, was a weakness assigned to its proposal for its transition plan schedule. The SEB had found that while Navarro’s transition plan discussed task assignment during transition, this item was not identified on the transition schedule. Portage was assigned a notable weakness for its decision to locate its key person for real property and its key person for beneficial reuse in Washington, D.C., away from the rest of the management team in Colorado—a decision the SEB found would result in increased costs and reduced communication, according to the GAO. “Navarro contends that the SSO acted unreasonably in disregarding or discounting the notable weakness assigned to Portage while relying on the weakness assigned to Navarro as a discriminator in the selection decision. We agree,” the GAO said.

 

According to the GAO, the source selection decision said that Navarro’s weakness “greatly increases the risk of uncertain performance,” while Portage’s notable weakness could be overcome with communications technology or relocation. The GAO found, though, that the SSO’s conclusions as expressed in the decision “contradicted” those expressed at a hearing the GAO held as part of the protest process. “When questioned about Navarro’s weakness, the SSO characterized it as simply a ‘minor issue’ and an ‘administrative error,’” the GAO decision says. “The SSO also admitted that, had Navarro’s proposal been selected, this minor omission would have been corrected and ‘we would have started on time.’ … Moreover, when asked at the hearing how the weaknesses assigned to Portage’s and Navarro’s weakness compared, the SSO stated that the two weaknesses were hard to compare to one another and that Navarro’s weakness was, in essence, an administrative error, while Portage’s weakness related to a personnel decision.” The GAO went on to say, “Given the SSO’s testimony, we find that the record does not support the reliance in the source selection decision on Navarro’s transition task assignment weakness as a discriminator in favor of Portage.”

 

 

A footnote in the GAO’s decision cites as another example of the discriminators DOE used, an internet search the SSO performed on two of Portage’s proposed subcontractors. “As a result of his search, which led him to review the companies’ websites, the SSO concluded that Portage’s decision to team with these two companies was ‘intriguing,’ ‘creative,’ and ‘interesting,’ and served as a discriminator in favor of Portage,” the decision says.

 

 

In its protest, the WAI-Stoller team also claimed that DOE had conducted an “unreasonable” evaluation of its technical proposal, but the GAO chose not to support that allegation. “Based on our review of the record, however, we find that none of WSS’s arguments furnish a basis for questioning the agency’s overall determination that WSS’s proposal was less advantageous than Portage’s (and Navarro’s),” the GAO decision says. The GAO later said, “In sum, while the evaluation of WSS’s proposal may not have been entirely without error, WSS has furnished no basis to question the agency’s overall evaluation of WSS’s proposal as less advantageous than the proposals submitted by Navarro and Portage. Therefore, WSS’s protest is denied.”