Protest alleging the awardee’s quotation failed to fully comply with the solicitation’s request for proof of commitment for satellite bandwidth is denied, where the protester’s quotation contained a similar deficiency and benefited from the agency’s waiver of the requirement.
UltiSat Inc. protested the Federal Emergency Management Agency’s award of a task order for contingency satellite services to DRS Global Enterprise Solutions Inc., challenging various aspects of the evaluation of quotations.
First, UltiSat alleged that DRS failed to submit sufficient proof of commitment of satellite bandwidth from a satellite owner, which, should have resulted in the rejection of the awardee’s quotation.
The RFQ identified four types of satellite services required under the task order, and instructed vendors to submit documented proof of ownership, lease agreement, or contingent agreement detailing available bandwidth to meet both guaranteed/non-preemptable and not guaranteed/non-preemptable requirements. Any contingent agreement had to be in place at the time of task order award and remain throughout the life of the task order.
In its quotation, DRS documented the bandwidth available through its existing satellite capacity leases and purchase orders. UltiSat protested these proofs of commitment. According to UltiSat, the purchase orders were not agreements or commitments; were not agreements to provide services in connection with this specific procurement; and did not expressly cover the performance period of the task order. The protester also noted that one order did not involve the awardee.
In response, the agency explained that the change orders met the solicitation requirements because they show documented proof of a lease agreement and detail the available bandwidth. However, GAO concluded it need not resolve this issue, because UltiSat had not established prejudice.
GAO found FEMA waived the requirement for proof of commitment since there is no record of any assessment of the vendors’ submissions. However, this waiver did not prejudice UltiSat because submitted a contingent agreement that expired prior to the task order award. Further, GAO found UltiSat did not submit proof of commitment for all of its satellites. Thus, UltiSat’s proposal also failed to comply with the solicitation’s proof of commitment requirements. Under its own interpretation of the RFQ, the protester’s quotation also should have been rejected as technically unacceptable. However, the agency did not reject the proposal. Accordingly, any waiver of the requirement was applied equally to the offerors, without prejudice to UltiSat.
Next, UltiSat argued that FEMA assigned strengths to DRS’s quotation while ignoring similar strengths in its own quotation. However, GAO found no basis to these arguments, as the different ratings arose from differences in the quality and content of the quotations. For example, instead of referencing specific areas of the SOO, UltiSat’s quotation merely stated that it had reviewed the SOO and Q&A. Further, UltiSat failed to directly address SOO requirements by section consistently, making it difficult for the TEP to directly evaluate its proposed solutions for performing and managing each of the task areas described in the SOO.
Similarly, in other areas of the proposal, DRS offered engineers recognized as subject matter experts, while UltiSat did not. DRS’ quotation was also assessed a strength for the awardee’s demonstrated ability to provide exceptional satellite service in remote and austere environments. While UltiSat argued that its quotation demonstrated the same quality, the agency concluded—and GAO agreed—that the protester’s quotation did not provide the same level of information about its ability to provide services in remote locations under austere conditions. Rather, it merely asserted that the protester served certain locations without any substantiating support.
UltiSat Inc. is represented by Alexander B. Ginsberg, Megan D. Doherty, Aaron S. Ralph, and J. Matthew Carter of Pillsbury Winthrop Shaw Pittman LLP. DRS Global Enterprise Solutions Inc. is represented by David Z. Bodenheimer and Robert J. Sneckenberg of Crowell & Moring LLP. The government is represented by Matthew G. Lane and Samantha S. Ahrendt, Department of Homeland Security. GAO attorneys Noah B. Bleicher and Peter H. Tran participated in the preparation of the decision.
