Protest challenging agency’s evaluation and best value tradeoff is denied. The protester claimed the agency failed to perform a cross-walk required by the solicitation. The court, however, found this argument was really a price realism argument in disguise, and the solicitation did not require the agency to perform a price realism analysis. The protester also alleged that the agency failed to document the cross-walk, but the court found that the solicitation did not require the agency document’s its cross-walk analysis; that the agency considered the cross-walk as part of the best value analysis was sufficient. The protester further alleged that the agency unreasonably penalized it for over-reliance on notes during an oral presentation. The protester argued that the agency was irrationally judging presentation skills instead of the substance of proposals. While the agency had found the protester’s presentation uninspiring, that it was not what tanked its proposal. Rather, the protester did not receive the award because its proposal was $100 million more than the awardee’s.
Customs and Border Protection (CBP) awarded a contract to ISS Action, Inc. for security and transportation services. The incumbent, GS4 Secure Solutions, filed a protest with the COFC, alleging that CBP’s evaluation and best value tradeoff were flawed. ISS intervened, and the parties moved for judgment on the administrative record.
G4S contended that CBP failed to perform a cross-walk required by the solicitation. Specifically, the solicitation required CBP to perform a cross-walk of the technical presentation and price submissions to ensure that price was in line with the technical approach, and that each offeror’s price was fair and reasonable. G4S argued that failure to conduct a proper cross-walk caused CBP to overlook a significant risk posed by what appeared to be (due to redactions) problems with ISS’s staffing.
The court, however, found that G4S’s cross-walk argument was really just a price realism argument in disguise. Essentially, G4S was arguing that CBP could not perform the contract with the number of staff and at the price it was proposing. The court noted that an agency is not obligated to perform a price realism analysis unless the solicitation expressly requires it. Here, there was no explicit price realism requirement obligating CBP to review each aspect of price.
G4S also argued that CBP’s failure to document the cross-walk led to unreasonable conclusions. But the court found that the solicitation did not require a written cross-walk analysis. CBP engaged in a tradeoff analysis that did consider the cross-walk. That analysis fully explored the relative benefits of G4S’s incumbency relative to the benefits of ISS’s innovative approach. The failure to document the cross-walk did not lead to unreasonable conclusions.
The court noted that G4S appeared surprised that the CBP selected ISS, because G4S was the incumbent. The court, however, was not surprised. G4S’s proposal was more than $100 million more expensive than ISS’s. What’s more, according to the court, ISS provided more detailed responses to challenge questions during an oral presentation than G4S.
G4S further argued that CBP erred by considering a previous contract performed ISS’s subcontractor as part of the past performance evaluation. The court found, however, that contrary to G4S’s position, the solicitation did not limit consideration of past performance to one contractor; rather, it permitted one contract to be from a teaming partner.
The solicitation had required offerors to make an oral presentation describing their technical approaches. CBP had not been impressed with G4S’s oral presentation, noting that it answers to questions were deficient, and that the G4S presenters had heavily relied on pre-prepared notes.
G4S argued that CBP had improperly favored ISS during the presentation. It claimed that ISS was given for more time to answer questions. The court disagreed noting that the evaluators had tailored their questions to the substance of the respective presentations. What’s more, prior to the presentation, CBP had informed both offerors that they had 60 minutes to answer follow up questions. The court found that G4S had failed to provide facts sufficient to overcome the presumption of good faith accorded to agencies.
Finally, G4S contended that it was wrongly penalized for relying on notes during the presentation. The solicitation, G4S alleged, did not prohibit the use of notes. But the court reasoned that even if CBP had been a little harsh in evaluating G4S’s oral presentation skills, that was not what doomed the company’s proposal. Given the $100 million difference between G4S’s and ISS’s prices, G4S cannot reasonably claim that it would have received the award in the absence of the CBP’s evaluation errors.
G4S is represented by Gerald H. Werfel and H. Todd Whay of Baker, Cronogue, Tolle & Werfel, LLP. The intervenor, ISS, is represented by Daniel R. Forman and Robert J. Sneckenberg of Crowell & Moring, LLP. The government is represented by Lauren S. Moore, Joseph H. Hunt, Robert E. Kirschman, Jr., and Tara K. Hogan of the U.S. Department of Justice as well as Terrius D. Greene of U.S. Customs and Border Patrol.
