In OneSource PCS, LLC, B-419222, January 6, 2021, the Government Accountability Office sustained the protest of a contract award made by the Department of the Air Force, finding that the agency's evaluation of past performance in the winning proposal was unreasonable. This decision is noteworthy because it demonstrates that proposals must not only be strong enough to win the contract, they must also be capable of surviving a competitor's protest. The awardee's proposal persuaded the Air Force that the contractor offered the best value in performing the contract, but the GAO found the agency failed to recognize the deficiencies of the proposal.
Award of Contract
The Air Force issued a request for proposals for photorefractive keratectomy (PRK) personal and nonpersonal services. As indicated by the performance work statement, the agency sought to procure the services of medical professionals with specific experience in the care of patients undergoing PRK and other refractive surgeries, rather than just general optometry services. The RFP identified the labor categories as optometrists, a clinical manager/ research assistant, PRK surgical technicians, PRK technicians, and an operations manager.
Offerors were informed by the RFP that the Air Force would evaluate proposals based on two factors: past performance and price. The instructions further stated that the agency would conduct the acquisition using a "best value/trade-off approach where past performance is significantly more important than price." Only an offeror receiving a past performance rating of "substantial confidence" would be eligible for award.
The Air Force received twelve proposals in response to the RFP, including proposals from AIMS Locum Tenens, LLC and OneSource PCS, LLC, the incumbent contractor. It ranked the proposals according to price, ranging from lowest to highest. The agency first evaluated the lowest-priced offeror's past performance. That proposal did not receive a "substantial confidence" rating, and thus, the agency evaluated the second lowest-priced offer. This process continued with the third and fourth lowest-priced offers, as none of these proposals received a "substantial confidence" past performance rating. The fifth lowest-priced offeror was AIMS. The Air Force assigned AIMS a "substantial confidence" rating, determining that "the Government has a high expectation that [AIMS] will successfully perform the required effort."
Primarily because of its past performance rating and its reasonable price, AIMS was determined to be the apparent successful offeror. No other proposals were evaluated by the Air Force. The debriefing informed OneSource that award had been made to AIMS and that because AIMS was the lowest-priced offeror with a past performance confidence rating of "substantial confidence," OneSource's past performance had not been evaluated.
Protest to GAO
OneSource protested the contract award to the GAO. It argued that the Air Force failed to evaluate AIMS's past performance in accordance with the solicitation. Specifically, OneSource contended that the agency improperly determined that AIMS's past performance references were relevant to the requirements of the performance work statement and, therefore, unreasonably assigned a "substantial confidence" rating to AIMS's proposal. The protester recited that AIMS's proposal described work performed on its past contracts in a general manner, listing only "general position descriptions and numbers of individuals in those positions" related to general optometry services. OneSource argued the solicitation "was not for common optometry services but rather was very specific to [PRK] surgery services and research."
The issue before the GAO was the agency's finding that AIMS's past performance references were relevant to the requirements of the performance work statement and warranted a "substantial confidence" rating under the past performance evaluation factor. Here, the GAO observed, the Air Force evaluated AIMS's past performance based partly on a list of past performance references. Two contract references were deemed relevant. The entirety of the text under the description of work performed for the first reference contract stated that AIMS manages complex physician and ancillary staffing services at various tough-to-fill locations. AIMS recited that it provided an optometrist, four surgical techs, and four optical techs at three hospitals. Similarly, the entirety of the text under the description of work for the second reference contract stated that AIMS was contracted to provide physicians and ancillary staffing services concerning various specialties including, but not limited to, an ophthalmologist, three optometrists, eight surgical techs, and ancillary staffing, primarily located at two hospitals and a set of clinics.
Based on the information provided in the AIMS proposal, the GAO could not find that the agency reasonably concluded that AIMS's experience providing personnel skilled in performing general optometry and surgery was similar or essentially the same as providing personnel skilled in assisting in PRK and other refractive surgery procedures. None of the personnel listed in AIMS's past performance references reflected the specialty skills sets or experience to assist with PRK procedures.
Given that information, the GAO concluded that the PRK-specific services required by the performance work statement were not services that are provided by all optometrists and general surgical technicians. Although the labor categories listed in AIMS's past performance section of its proposal showed that AIMS provided personnel in general eye care and surgical fields, the positions listed did not indicate that AIMS's prior efforts involved providing any personnel with PRK experience, or even personnel qualified to assist with refractive surgery procedures more generally.
According to the GAO, the solicitation required the contractor to provide personnel with knowledge or experience in PRK services. Under this evaluation scheme, the Air Force was to determine that an offeror's past performance references were relevant before assessing the quality of the prior work performed. There was no basis in the record to conclude that the awardee's prior work involved a "similar" or "essentially the same" scope as here because the prior work did not involve, or provide experience with, PRK-specific procedures.
The GAO further found that offerors had ample opportunity to include specific details about prior work in their proposals. The past performance reference list template supplied by the agency did not set forth any limitations on how much detail an offeror could place in the table. In comparison to AIMS, OneSource described its past work as "Photorefractive Keratectomy (PRK) Clinic Services," and included the description "refractive" in the personnel position titles, e.g., "Refractive Research Surgical Technician."
AIMS defended its proposal by contending that both of its prior references "were for the staffing and management of clinics offering refractive surgeries including PRK and LASIK, among others." The GAO noted, however, that AIMS did not provide any reference to where this information could be found in its proposal. Moreover, even if these assertions were accurate, the GAO said it failed to see, and the agency failed to explain, how it found AIMS's past efforts to be "similar" or "essentially the same" in scope as the requirements in the performance work statement. The GAO found no support in the contemporaneous record for the conclusion that AIMS's prior references involved PRK services.
By reason of the agency's error, the protester — who was the offeror with the next lowest price — lost the opportunity to be evaluated and considered for award. Thus, the GAO determined that OneSource established the requisite competitive prejudice to prevail in the protest.
Protest Decision
The GAO sustained the protest. It recommended that the Air Force reevaluate proposals consistent with the terms set forth in the solicitation, adequately document its evaluation, and make a new source selection decision. Alternatively, if the Air Force no longer requires personnel with PRK-specific experience, the GAO said the agency should amend its solicitation to reflect the agency's actual needs and request revised proposals.
Lessons to be Learned
In light of the record of this procurement set forth in the GAO decision, it is surprising that the Air Force awarded the contract to AIMS. The AIMS proposal fell short of one of the most basic requirements of a proposal to perform a government contract. That is, AIMS failed to provide sufficient detail to demonstrate that it could satisfy the needs of the agency at least as well as, and hopefully better than, its competitors. In this particular matter, AIMS did initially convince the Air Force that it provided the best value, but the agency's evaluation was not reasonable. The contrast between the detail offered by AIMS and by the protestor OneSource persuaded the GAO that the award could not stand.
Two lessons are suggested by this protest decision. First, contractors should ensure their proposals describe their goods and services with sufficient detail to show they match the requirements of the agency as set forth in the solicitation. This is perhaps an obvious lesson, but it is frequently ignored. Second, contractors must bear in mind that their proposals are directed to two sets of evaluators, contract officials at the agency and, in some instances, a protest forum like the GAO. Satisfying the agency does no good if the proposal is vulnerable to a protest.
Originally published by PACA Pulse: Winter 2021.
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