The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series. In this series, Crowell’s Government Contracts Practice will keep you up to date with a summary of the most notable bid protest sustain decision each month. Below, Crowell Consultant Cherie Owen discusses The Mission Essential Group, LLC, B-422698.2, Jan. 8, 2025, 2025 CPD ¶ 23, which provides useful insight into the possibility of challenging the evaluation scheme identified in a solicitation.
In Mission Essential, the Air Force sought to acquire “pilot augmentation support services” in Europe and Africa. These services involve the performance of “non‑flying duties in combat and rescue squadrons,” which have customarily been performed by pilots and weapons officers. The Solicitation provided for award on a lowest-price, technically acceptable (“LPTA”) basis. In determining technical acceptability, the Air Force would consider two technical subfactors: (1) past technical experience; and (2) staffing plan. To be technically acceptable under the past technical experience subfactor, offerors were required to submit no more than two work samples demonstrating experience performing similar work, which the solicitation vaguely defined as “performance within flying operational units.” The Agency refused to mandate that offerors demonstrate prior performance of a particular number of the solicitation’s requirements in their experience examples. Under the staffing plan subfactor, offerors were required to describe their “unique plan” for accomplishing the tasks identified in the performance work statement (“PWS”). The Solicitation provided staffing estimates but allowed offerors to deviate from those estimates.
Mission Essential Group protested the Agency’s decision to conduct the procurement on an LPTA basis. Mission Essential Group noted that the Defense Federal Acquisition Regulation Supplement (“DFARS”) contains eight criteria, all of which must be satisfied before an agency may adopt an LPTA source selection methodology:
(i) Minimum requirements can be described clearly and comprehensively and expressed in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers;
(ii) No, or minimal, value will be realized from a proposal that exceeds the minimum technical or performance requirements;
(iii) The proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal;
(iv) The source selection authority has a high degree of confidence that reviewing the technical proposals of all offerors would not result in the identification of characteristics that could provide value or benefit;
(v) No, or minimal, additional innovation or future technological advantage will be realized by using a different source selection process;
(vi) Goods to be procured are predominantly expendable in nature, are nontechnical, or have a short life expectancy or short shelf life . . .;
(vii) The contract file contains a determination that the lowest price reflects full life‑cycle costs . . . of the product(s) or service(s) being acquired . . . ; and
(viii) The contracting officer documents the contract file describing the circumstances justifying the use of the lowest price technically acceptable source selection process.
DFARS 215.101‑2‑70(a)(1).
In finding the use of an LPTA methodology improper, GAO noted that the Air Force had failed to satisfy three of these criteria. First, the Air Force failed criterion (i) by failing to demonstrate that the procurement’s minimum requirements could be described clearly and comprehensively and expressed in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers. In this regard, GAO noted that under the past technical experience subfactor, the Solicitation provided “no guidance regarding which of the 46 pages of PWS subtasks an offeror must demonstrate past technical experience performing to be rated acceptable,” thus failing to satisfy criteria (i).
Second, the Air Force failed to demonstrate that criterion (v) was met. Here, GAO highlighted the solicitation’s encouragement that offerors submit unique approaches, and its indication that offerors could offer deviations from the staffing estimates. In accordance with these provisions, it was likely that the Air Force could potentially obtain additional value from offerors’ different approaches, including efficiencies and cost savings. As a result, GAO concluded that “the agency’s justification that it will realize minimal or no value from a proposal exceeding the minimum requirements cannot withstand logical scrutiny.”
Finally, the GAO found that the Air Force failed to satisfy criterion (vii) in two different ways. First, with respect to procedure, the contract file did not contain a determination by the requiring activity that the lowest price reflected the full life‑cycle costs of the services being acquired. And second, with respect to substance, the record showed that the lowest price here would not, in fact, reflect the full life-cycle costs of performance because the task order included several cost-reimbursement CLINs, the full cost of which would not be reflected in offerors’ proposed prices. Because the Air Force was permitted to use an LPTA evaluation methodology only if all of the DFARS 215.101‑2‑70 criteria were met, GAO concluded that the use of an LPTA methodology here was not supported.
Moreover, in addition to failing several of the DFARS criteria, GAO noted another independent basis for overturning the Air Force’s use of an LPTA award scheme. Specifically, the DFARS provides that contracting agencies are required to “avoid, to the maximum extent practicable,” the use of LPTA procedures for procurements that are “predominantly for the acquisition” of “other knowledge‑based professional services.” DFARS 215.101‑2‑70(a)(2)‑(a)(2)(i). GAO noted that the Air Force’s decision to conduct the procurement on an LPTA basis was primarily based upon the agency’s use of a “complexity analysis tool” (“CAT”) that asked a series of questions about the procurement, then assigned it a complexity score. The tool recommended that procurements with low complexity scores (such as the procurement here) should use an LPTA award methodology. However, GAO found that this approach failed to implement the proper standard: it did not analyze whether using another award methodology was “impractical.” In this regard, GAO found that there was no support for the conclusion that simply because a procurement received a low complexity score, it was impractical to use an award methodology other than LPTA. Therefore, GAO sustained the protest on this basis as well.
The Mission Essential decision provides an important reminder to contractors about the importance of assessing the terms of a solicitation early in the process to determine whether it establishes fair, reasonable, and legally appropriate ground rules for the competition. As we noted in our discussion of another recent successful protest to the terms of a solicitation (here), if a solicitation’s terms impede your ability to fairly compete for a procurement, you should consult with your counsel about whether a challenge to the terms of the solicitation is appropriate.