Generally, government procurements for construction and architect-engineering do not follow the typical Federal Acquisition Regulations (FAR) rules applied to the purchase of other goods and services. Instead, these services are procured under the authority of the Brooks Act, according to special procedures designed to identify the most qualified firms; specifically, the Two-Phase Design-Build Selection Procedures set forth in FAR subpart 36.3, and Architect-Engineer Services Contract Procedures set forth in FAR subpart 36.6.
Under either of these procedures, the government conducts an initial evaluation of offerors’ qualifications, experience, and past performance—not of detailed technical approaches or price—in order to identify the most highly qualified offerors with which to negotiate. An agency’s judgment about which firms are most highly qualified is a matter of significant discretion. However, a recent decision of the Government Accountability Office (“GAO”) reminds us that the agency’s exercise of discretion must be reasonable and consistent with its synopsis, and that the evaluation of offerors’ Statements of Qualifications can be successfully protested.
In the protest of Evergreen JV, B-418475.4, Sept. 23, 2020, the protester submitted a Statement of Qualifications in response to a FAR subpart 36.6 synopsis issued by the Air Force for the award of multiple 10-year IDIQ contracts for military construction and other services, with a total program value of up to $2 billion. The synopsis provided that offerors’ Statements of Qualifications would be evaluated considering the extent and breadth of the firms’ relevant experience references, extent and breadth of the relevant experience of Key Personnel, and extent of proposed personnel’s professional licenses and certifications, education/training, and longevity with the firm.
The Air Force first notified Evergreen in January 2020, that it was not among the most highly qualified firms. However, following debriefing questions submitted by Evergreen, the agency elected to reevaluate all Statements of Qualifications. On March 20, the Air Force again concluded that Evergreen was not selected as most qualified. In response, Evergreen filed a GAO protest, and the Air Force took corrective action, by again reevaluating the Statements of Qualifications.
On June 1, the Air Force selected nine firms as most highly qualified, but again did not select Evergreen. Evergreen then filed another protest at GAO, alleging that the agency conducted an unreasonably mechanical evaluation by counting only the quantitative number of relevant experience references, Key Personnel licenses and certifications, etc., and failed to perform a comparative qualitative evaluation of the extent and breadth of each firm’s experience, as required. GAO agreed, concluding that the “simple counting of instances, however, does not consider the ‘greater extent and breadth’ of each offeror’s experience in each of the projects . . . [this] mechanical comparison, without a qualitative comparison of offerors, is inconsistent with the synopsis criteria, and not reasonably based.”
This decision is an important reminder for construction and architect/engineering firms bidding on FAR Part 36 contracts that an agency’s selection of the most highly qualified firms under a Brooks Act procurement must be reasonable and consistent with the synopsis, and can be successfully protested by a disappointed offeror at the time it learns that it has not been selected as among the most highly qualified firms.