Protest challenging the evaluation of proposals is denied. The protester alleged the agency did not apply the criteria in the solicitation or applied criteria that were not stated in the solicitation. GAO disagreed finding that the agency evaluated the protester under the terms of the solicitation. The protester claimed the agency erred in uncritically accepting one the awardee’s assumptions. But GAO found that the awardee’s assumption was not inconsistent with the RFQ. GAO did find that the agency disparately evaluated proposals. Nevertheless, GAO concluded that the disparate evaluation did not prejudice the protester. Even if the negative ratings that resulted from the disparate evaluation were removed, the protester still did not have a substantial chance of receiving award.
The Centers for Medicare and Medicaid Services (CMS)issued an RFQ to holders of the Federal Schedule for information technology services. The RFQ sought services related to software testing for Medicare information systems.
The RFQ had a two phase evaluation process. Four vendors submitted quotations in the first phase. Two vendors, Data Computer Corporation of America (DCCA) and Sparksoft Corporation, moved on to the second round. CMS ultimately awarded the contract to Sparksoft, finding that its proposal was “moderately” superior to DCAA’s, which justified a slight price premium. DCCA protested.
DCCA argued that the standards CMS used to evaluate corporate experience were inconsistent with the RFQ. The RFQ provided that relevant experience would involve an effort with up to 60 FTEs. But CMS had considered efforts with only 10 FTEs or 5,000 test cases as relevant.
GAO found that the agency’s evaluation unobjectionable. Agencies have great discretion in determining the relevance of corporate experience. Here, the RFQ estimated that the effort would involve teams potentially totaling 60 FTEs. But the focus of the procurement was on innovation and automation, which could lead to vendors taking different approaches with lower FTE counts. CMS reasonably concluded that work involving 10 FTEs were similar enough in size to be relevant.
DCCA contended that by choosing a low threshold to evaluate the size and scope of experience references, CMS had erased one of DCCA’s significant advantages and essentially turned the evaluation into a pass/fail. GAO disagreed. The evaluation record showed CMS evaluated each experience reference on it own terms. DCCA simply disagreed with CMS’s evaluation judgments.
DCCA alleged CMS misapplied the 10 FTE criterion, incorrectly finding one of Sparksoft’s reference relevant even though the project did not have 10 FTEs. But GAO found that the reference only had less than 10 FTEs if managers and program support staff were excluded from the count. DCCA had not shown why managers and support staff should not be included.
DCCA complained that CMS applied unstated criteria when it penalized DCCA for failing to include an agile release checklist or process for improvement. DCCA claimed that nothing in the RFQ required inclusion of an agile maturity checklist.
GAO noted that agencies are not required to list as stated criteria every area that may be taken into account. Rather, it is sufficient that areas considered are reasonably related to the state criteria. Here, the instructions required vendors to describe their workflows and processes in using an agile development methodology. A checklist and process improvements were inherent parts of the a mature agile process and thus were reasonably encompassed in by the terms of the RFQ.
DCCA complained that CMS had uncritically accepted one of Sparksoft’s assumptions as part of a demonstration exercise. As part of its exercise, Sparksoft had assumed that it had already migrated to an agile methodology. DCCA contended that this assumption was inappropriate because migration to an agile framework was part of the work contemplated by the contract.
GAO saw no problem with this because the implementation of an agile testing environment was the goal of the effort. While the contract involved migration from a legacy environment to an agile environment, the demonstration exercise itself did not require vendors to demonstrate such a migrations. Sparksoft’s assumption did not violate any constraints imposed the RFQ’s instructions.
Lastly, DCCA asserted that CMS had disparately evaluated proposals during under the RFQ demonstration factor. Specifically, DCCA alleged, CMS had assigned negative ratings to DCCA but not to Sparksoft for aspects of their quotations that were substantively indistinguishable.
GAO agreed that CMS had unequally evaluated quotations under the demonstration factor. But GAO concluded that DCCA had not been prejudiced by the error. DCCA had four positive and five negative findings under the factor. Sparksoft had eleven positive findings and no negative findings. Even removing the two negative findings from DCCA’s evaluation would not have given it a substantial chance at receiving award.
DCCA is represented by Rebecca E. Pearson, Taylor Hilman, Caleb E. McCallum, and Lindsay M. Reed, of Venable, LLP. The intervenor, Sparksoft, is represented by David B. Dixon, Toghrul M. Shukurlu, and Robert C. Starling of the Pillsbury Winthrop Shaw Pittman LLP. The agency is represented by Krystal A. Jordan, Robyn A. Littman, and Douglas Kornreich of the Department of Health and Human Services. GAO attorneys Michael Willems and Edward Goldstein participated in the preparation of the decision.
