Protests challenging the agency’s evaluation of the experience of the awardee’s proposed program manager is sustained, where the agency independently evaluated the experience of a protester’s proposed PM but accepted the awardee’s narrative on face value. GAO also denied a protest alleging the agency was required to reopen discussions, finding that the removal of a significant strength during a reevaluation did not amount to the assignment of a significant weakness or deficiency that the agency was required to address. GAO also denied other protest grounds as untimely, as they were raised and withdrawn during an earlier protest of the same award.
Will Technology Inc. and Paragon TEC Inc. protested NASA’s award of a contract for acquisition and business support services to Canvas Inc., challenging various aspects of the evaluation.
First, WTI reasserted multiple challenges to the evaluation of its proposal that were filed in its first protest, but were later voluntarily withdrawn. For example, WTI again asserted that the neutral rating it received for past performance was unreasonable because the contracts it submitted for review were relevant to the work contemplated by the RFP. In response, the agency argued these protest grounds were untimely because they were raised more than 10 days after WTI’s debriefing. WTI argued they were timely, because they were filed after its second debriefing that occurred after the reevaluation of proposals and second award decision.
GAO agreed that all of WTI’s challenges to the agency’s evaluation of its proposal were untimely. While the agency did conduct a second evaluation and debriefing, no aspect of WTI’s proposal was reevaluated and no changes were made to any of the ratings originally assigned. Moreover, in response to its first protest, WTI received the full agency report on September 13, 2017, which contained all documents relevant to NASA’s evaluation of WTI. The agency’s new source selection decision did not revive WTI’s opportunity to challenge the original evaluation.
In its protest, Paragon argued that NASA was obligated to re-open discussions and provide it with an opportunity to address alleged weaknesses identified by the agency during its reevaluation of Paragon’s program manager. Because NASA previously expanded the scope of discussions to allow offerors to address all issues and weaknesses, including those that were not considered significant, Paragon argued the agency was required to provide it with an opportunity to address NASA’s new findings after its proposal was reevaluated, regardless of whether a finding was considered a significant weakness or a deficiency. In support, Paragon argued that the significant change in its rating is evidence that the agency’s concerns were treated as weaknesses.
In response, NASA explained that it decided to reevaluate the experience of Paragon’s proposed program manager because of information it received from WTI during the first protest. As a part of the reevaluation, the agency verified the PM’s employment history by contacting the individual’s prior employers and by reviewing internal records related to a previously performed NASA contract with information relevant to the PM.
Paragon’s proposal had initially been assigned 374 points, and a very good rating under the staffing approach subfactor, in part because the proposed PM was considered a significant strength. However, during the reevaluation, the agency concluded it had credited the PM with more experience than he deserved. The agency’s investigation found discrepancies in the amount of experience stated in Paragon’s proposal and found a previously unidentified gap in employment. As a result, Paragon’s point total feel from 374 to 270 points, and the adjectival rating was downgraded from very good to good.
GAO disagreed with Paragon’s argument that this new information resulted in the assignment of a concern, issue, weakness, significant weakness, or deficiency. Instead, the revised rating was due to the loss of a previously assigned significant strength, which the agency concluded was unwarranted. GAO noted that Paragon still received a good rating, but had no other remaining strengths for its staffing approach. While Paragon hoped to characterize the removal of a strength as the assignment of a weakness, GAO declined to adopt that view.
Next, WTI and Paragon both argued that NASA applied a different and higher standard of review to evaluate information contained in their proposals, compared to its evaluation of the awardee. Specifically, they allege the agency accepted representations made by Canvas in its proposal about its PM’s experience, while refusing to do the same for them. In response, NASA conceded that it applied a different level of scrutiny when evaluating the experience of the PMs offered by WTI and Paragon, but argued that its evaluation was justified and that it was not required to go outside the four corners of Canvas’ proposal to evaluate the employment history of its proposed PM.
GAO confirmed that the agency gave Canvas’ PM full credit for the experience described in the awardee’s proposal, in contrast to the enhanced scrutiny it gave to Paragon’s proposal. For example, while Canvas’ proposal described the proposed PM’s experience, it did not provide detailed contract information or dates related to the PM’s specific experience. While one contract was issued to support NASA, there was no evidence the agency attempted to verify the PM’s experience. Further, there was no evidence the agency verified the scope of a second contract, the number of employees who were managed by the PM under that contract, or when performance occurred. This level of scrutiny was in stark contrast to the investigation conducted by NASA in relation to Paragon’s proposed PM. GAO concluded this amounted to an unequal evaluation.
In response, the agency argued its evaluation was justified because WTI provided it with credible outside information that called into question the accuracy of the information in Paragon’s proposal. WTI’s compliant contained a deposition of Paragon’s PM that was taken in connection with an unrelated litigation. In that deposition, Paragon’s PM discussed employment information that conflicted with the information in Paragon’s proposal. Once WTI brought this information to its attention, NASA concluded it was obligated to investigate to preserve the integrity of the procurement process.
However, in these protests, both protesters raise allegations challenging the amount of experience NASA attributed to Canvas’ PM. For example, NASA credited the PM for five years and eight months of supervisory experience for one contract, even though performance of the first task order did not begin until October 2013, more than two years after the PM began working for the contractor. In response, NASA argued that agencies have the discretion to reasonably rely upon information provided by an offeror in its proposal when performing their evaluations, and are not obligated to consider outside information.
GAO disagreed with the agency, finding no meaningful distinction between the allegations that led to the revised evaluation of Paragon’s PM and the allegations at issue here. GAO acknowledged that NASA was not obligated to consider information outside Canvas’ proposal, but it was required to treat offerors equally in the evaluation. GAO also found the protesters were prejudiced by the error, as Canvas’s proposal may not have received a significant strength or the same overall rating, had the agency evaluated its PM equally. Accordingly, GAO sustained the protest on these grounds.
Will Technology Inc. is represented by Michelle A. Levin, and Benjamin Little of Sirote & Permutt, PC. Paragon TEC Inc. is represented by John E. McCarthy Jr. James G. Peyster, and Michael G. Gruden of Crowell & Moring LLP. Canvas Inc. is represented by J. Andrew Watson III, Michael Rich, W. Brad English, and Emily J. Chancey, Maynard Cooper & Gale, PC. The government is represented by D. Evelyn Lyon, Vincent A. Salgado, and Jerry L. Seemann, National Aeronautics and Space Administration. GAO attorneys Young S. Lee and Peter H. Tran participated in the preparation of the decision.
