The protester objected to the agency’s evaluation of professional compensation, arguing the agency improperly excluded categories of employees from the evaluation. GAO agreed, finding that the agency’s definition of a “professional employee” was far too limited. Even if the position had qualified as professional, the agency had excluded the position if it also qualified under any other labor category. But nothing in the labor category regulations required the agency to so narrowly interpre the definition of a professional. GAO recommended a do-over.
Sabre Systems, Inc., GAO B-420090.3
Background
The Navy issued an RFP for software engineering and development. Four offerors, including Sabre Systems and American Systems Corporation, submitted proposals. The Navy awarded the contract to American, finding that Sabre’s slight technical and past performance advantages didn’t merit a price premium. Sabre protested.
Legal Analysis
Professional Compensation
The RFP required the Navy to evaluate offerors’ professional compensation plans in accordance with FAR 52.22.46. Under that provision, an agency must ensure that “professional employees” as defined by 29 C.F.R. § 541, are fairly compensated. Applying § 541’s definition, the Navy determined that only a few of the RFP’s labor categories qualified as professional employees. Basically, the Navy excluded every position from the definition of a professional employee that also qualified under a different category of employee. Thus, if a position qualified as a professional employee § 541 but also qualified as an administrative or computer employee, the Navy did not count them as a professional. Sabre argued that the Navy had unreasonably excluded categories of employees from its evaluation of professional compensation.
GAO agreed. A plain reading of § 541 and FAR 52.222-46 requires an agency to evaluate the compensation of an employee that meets the professional employee definition regardless of whether they qualify under other labor categories. Nothing in § 541 dictates that an employee who meets the definition of some other labor cannot also qualify as a professional employee. Indeed, the record showed that a number of categories the Navy excluded required a high level of education in a specified field—the very definition of a professional employee.
Technical and Past Performance Evaluation
Sabre challenged the agency’s technical evaluation, arguing that its approach deserved more strengths. GAO found this argument amounted to disagreement with the agencies’ evaluation conclusions. Sabre also argued the agency improperly equalized Sabre’s and American’s past performance when Sabre’s experience as the incumbent was more relevant. But GAO found that Sabre’s argument conflated the past performance with the best value tradeoff. Sbare believed the agency should have compared past performance references. But nothing in the past performance criteria required a comparison between references.
Prejudice
The Navy argued that even if it botched the professional compensation evaluation, Sabre had not been prejudiced because a change in the number of labor categories considered would not have changed the evaluation outcome. GAO was not persuaded. Because the Navy excluded categories of employees from its evaluation, GAO could not say the agency would have reached the same conclusion. Any doubts regarding prejudice are resolved in favor of the protester.
Sabre is represented by Alexander O. Canizares, Seth H. Locke, Julia M. Fox, and Paul Korol of Perkins Coie LLP. The intervenor, American Systems, is represented by John E. Jensen, Meghan D. Doherty, Robert C. Starling, and Ariella M. Cassell of Pillsbury Winthrop Shaw Pittman LLP. The agency is represented by Brian W. Ritter, Garrett S. Unger, and Gina M. Gascoigne of the Navy. GAO attorneys Uri R. Yoo and Alexander O. Levine participated in the preparation of the decision.
