Protest challenging the agency’s past performance evaluation is sustained, where the agency unreasonably considered a past performance reference for a proposed subcontractor that had been removed from the protester’s quotation, even though the agency previously considered the reference only partially relevant to the current requirement. The protester also had responded to the negative past performance reference during discussions, and had informed the agency that the proposed subcontractor would not have a major role in performance.
360 IT Integrated Services protested the Department of Homeland Security’s award of a task order for IT support services to Inserso Corporation, arguing that DHS misevaluated its quotation under the past performance factor, unequally evaluated quotations under the management and technical approach factors, and conducted a flawed best value tradeoff.
First, the protester argued that DHS unreasonably penalized it for negative past performance information for 360 ITIS’s proposed subcontractor, which experienced staffing problems on the incumbent contract. The protester explained that it had removed this reference from its quotation. Further, during discussions, the protester advised DHS that the subcontractor would have a limited role in performance and that its staffing issues would not affect its approach for the requirement. The protester also maintained that DHS lent unreasonable weight to the subcontractor’s past performance reference, despite having found that same effort to be only partially relevant during an earlier evaluation round.
In response, DHS explained that it considered the contract, despite its removal from the protester’s final revised quotation, because 360 ITIS had previously submitted the contract in an earlier version of its quote. DHS also asserted that it properly considered the contract because the FAR permits agencies to consider past performance information regarding subcontractors that will perform major or critical aspects of the requirement.
However, GAO found the agency failed to explain why it evaluated the incumbent contract or why it was relevant to the current requirement. GAO found no evidence the agency considered whether the proposed contractor would perform major aspects of the work. GAO also concluded that DHS gave unreasonable weight to the reference in 360 ITIS’s overall past performance rating, despite 360 ITIS’s very favorable past performance for its other references.
Next, 360 ITIS argued that its quotation did not receive equivalent strengths despite proposing similar features to those assigned strengths in Inserso’s quotation. The protester noted that Inserso received a strength for spreading out job functions and having teams perform multiple overlapping functions to provide backup to each other, but that the agency failed to assign its proposal a strength for a similar feature.
In response, DHS argued it did assign an equivalent strength, but GAO disagreed, finding that the strength focused on a different aspect of the protester’s staffing approach. In a supplemental statement provided after the receipt of comments, DHS provided a new explanation for its failure to assign a strength in this area, but GAO found the explanation was not reasonable or well-supported. In its statement, the TET chair explained that the evaluators did not believe 360 ITIS’s approach warranted a strength, but GAO noted this directly contradicted DHS’s earlier assertion that it had assigned an equivalent strength.
Finally, 360 ITIS argued that DHS failed to assign a strength for its proposed use of extra full-time equivalents beyond the minimum staffing levels established by the PWS. In response, DHS claimed it properly awarded 360 ITIS a strength for this aspect of its quotation under the technical approach instead of the management approach. However, GAO found that contrary to the agency’s position, the protester provided extensive discussion and explanation in multiple pages of its management approach proposal, and that the agency failed to provide a reasonable explanation for its decision not to award a strength to 360 ITIS’s management approach.
360 IT Integrated Services is represented by Richard J. Conway, Michael J. Slattery, and Ioana Cristei of Blank Rome LLP. Inserso Corporation is represented by Richard P. Rector, Dawn E. Stern, and Eric P. Roberson of DLA Piper LLP (US). The government is represented by Gabriel E. Kennon and Christopher M. Alwood, Department of Homeland Security. GAO attorneys Alexander O. Levine and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
