Detailed Insight Into GAO Ruling on Blue Origin DoD Contract Award Protest
GAO: Decision Matter of: Blue Origin Florida, LLC File: B-417839
“Blue Origin Florida, LLC, of Merritt Island, Florida, protests the terms of request for proposals (RFP) No. FA8811-19-R-0002, issued by the Department of the Air Force, for the National Security Space Launch (NSSL) Phase 2 Launch Service Procurement, which seeks to procure commercial item launch services for NSSL missions. Blue Origin alleges that several terms of the RFP unduly restrict competition, are ambiguous, or are inconsistent with customary commercial practice.
We sustain the protest in part and deny it in part.””
“Blue Origin raises multiple challenges to the terms of the RFP, alleging that the RFP includes terms that unduly restrict competition, are ambiguous, or are inconsistent with customary commercial practice. We note at the outset that the determination of the government’s needs and the best method of accommodating them is primarily the responsibility of the procuring agency. ACME Endeavors, Inc., B-417455, June 25, 2019, 2019 CPD ¶ 224 at 2. Our Office will not sustain a protest challenging an agency’s determination of its needs unless the protester presents clear and convincing evidence that the specifications are in fact impossible to meet or unduly restrict competition. Instrument Control Servs., Inc.; Science Mgmt. Resources, Inc., B‑289660, B-289660.2, Apr. 15, 2002, 2002 CPD ¶ 66 at 6. For the reasons that follow, we find that the Air Force’s “when combined” basis for award fails to provide an intelligible basis upon which offerors are expected to compete, and therefore sustain the protest on that basis. We otherwise find no basis on which to sustain the protest.[7]”
I suppose it’s some comfort to know scientists and NASA managers aren’t the only ones who can’t write clear, comprehensible sentences.
But, after reading it about four times, I think I understand. The RFP said the Air Force wanted to select two companies, whose services would be complementary. Blue Origin said that they don’t have any idea which other companies were proposing or what exactly they’d propose. Therefore, they couldn’t tell what sort of proposed work would complement those other proposals. And the GAO agreed. I suppose that’s all technically correct, although Blue Origin could actually have made some very good guesses.
I’m also not used to this approach. In the much, much smaller world of NASA research and analysis grants, that sort of language would never have appeared in the AO. The proposals are all reviewed independently of each other. Then the final selections are made on both the reviews and “programatic reasons” by the folks at NASA headquarters. Selecting complementary proposals would be one of those “programatic reasons.”
Thank you for the digestible analysis
A few other reports on this have come out. It looks like Blue Origin had a few other objections, about things like the time before the next round of selections and the choice to select only two service providers. The GAO did not support those protests, on the grounds that the customer (the Air Force) gets to decide what their own needs are. Also, on the issue of selecting complementary proposals, the Air Force has apparently decided to go along with the GAO’s decision and they will review the proposals individually.
“proposals are all reviewed independently of each other”
Can you expand? Wouldn’t proposals be compared? Feature for feature, as in a spreadsheet?
As a disclaimer, I’ve only reviewed much smaller (under $1 million) proposals, and only never seen the reviews of anything bigger than a Discovery and New Frontiers proposals (under $1 billion.) And those were proposals to NASA, not Air Force.
But, yes, at some point, the proposals will be compared. As random as some selections may seem, they actually don’t throw darts. A spreadsheet wouldn’t work, since there are too many potential apples-to-oranges comparisons. There is an important distinction between the review and selection processes.
Proposals are, by nature, a sales pitch, and they’re also pretty long and technical (I’d guess 30-50 pages in the main body for something like this, plus appendices of details running to well over a hundred pages.) The review process is where they hand it to a group (or groups) of supposedly impartial experts, to strip off the promotion and summarize the substance in perhaps three to five pages. What are they offering to do and how does it compare to what we asked for? Can they, in terms of technology and engineering, actually do it? Is their schedule and budget credible? That’s normally done for each proposal in isolation. The reviews aren’t supposed to say things like, “30 months from placing an order to launch is ok, since the requirement is under 36. But actually, that’s know of lame since the other proposals are offering 24 months or less.” They are just rating the proposals on a scale of one to five, in various categories, explaining why, and saying whether or not the proposal is compliant with the RFP.
Then the reviews go off to the people managing and _they_ make a selection. Inevitably, they will compare the proposals, and probably how two selections will complement each other. But it’s a separate process from the technical evaluation and review.
I get the impression the Air Force was originally planning to do a technical evaluation and review of the pairings, not the individual proposals. That is, in that spreadsheet you suggested, not having columns for company W, X, Y and Z, but columns for the six permutations, W&X, W&Y, W&Z… Y&Z. That would mean Blue Origin could get a bad review and poor technical ratings because they didn’t fit in well with the other companies proposals. The argued, and the GAO agreed, that that isn’t fair: It would be blaming them for not knowing what the other companies were proposing.
The end result is probably going to be the same, but there are some subtleties. If a company appeals the selections, they have a stronger case if they are appealing factual errors in the reviews. Or if the managers who made the selections picked a proposal rated “fair” over one rated “excellent” by the reviewers. (They could; but they would have to have a good, articulable reason.) So they don’t want to get a bad rating because of circumstances beyond their control.