Protest challenging the agency’s evaluation of proposals is denied, where the protester’s final proposal revision introduced ambiguity about its proposed level of effort and where the agency was not required to infer the protester had made an error nor read the protester’s discussion responses into its FPR. GAO also denied a challenge to the past performance evaluation, finding the agency reasonably considered negative information, despite the protester’s corrective actions and positive performance trends.
Jacobs Technology Inc. protested the Army’s award of a contract for mission test support services to TRAX International Company, challenging the evaluation of proposals under the mission capability, past performance, and small business participation factors.
First, Jacobs challenged the agency’s evaluation of proposals under the mission capability factor, arguing the agency incorrectly evaluated proposed efficiencies in its and the awardee’s proposals.
Jacobs proposed several efficiencies that would reduce the total number of hours under the baseline provided in the solicitation. Jacobs proposed to reduce productive hours based on efficiencies it developed while performing on similar test support contracts. During earlier rounds of evaluation, the Army accepted this efficiency, but during the final evaluation, the agency issued a discussion question to Jacobs seeking additional information about the reduction. Specifically, the agency stated that it was concerned that such an immediate reduction would significantly impact performance, and requested specifics regarding the impacted functional areas, skill classifications, and positions.
Jacobs explained that its proposed approach of reducing man-hours immediately at contract start was developed based on its successful implementation of similar workforce assignment, scheduling, and management approaches on relevant contracts. The protester also explained that its estimate was conservative because it lacked visibility into program specific staffing information. Jacobs also explained it would work with the agency during the transition to identify specific skills and personnel to exclude from the proposed efficiency, or at most implement a smaller percent reduction.
Jacobs’ final proposal revision stated that it would make an immediate reduction in productive hours at contract start, based on its more flexible workforce management approach and other organizational efficiencies. The evaluators assessed a weakness for the proposed efficiency, concluding that Jacobs’ proposed reduction was overly optimistic and unrealistic. The evaluators were concerned that an immediate, off-the-top reduction could adversely affect the test throughput because the testing requirements are unpredictable, and require flexibility to support the variable testing schedule.
In its protest, Jacobs argued that it reasonably explained its approach during discussions and that any reduction would be made with the agency’s cooperation. Jacobs also argued that the reduction was not an additional reduction, but was already included in Jacobs’ modified baseline, as reflected in other areas of its FPR, and that the agency unreasonably assumed it proposed further reductions in the workforce.
However, GAO found the Army was not required to infer Jacobs’ intent or permit Jacobs to revise its FPR. Any confusion with respect to Jacobs’ staffing approach is directly attributable to the protester’s conceded drafting error in failing to properly modify its FPR to reflect its intended approach to the agency’s requirements, not any unreasonable evaluation by the Army. Further, the agency’s invitation for the submission of FPRs explicitly warned offerors that the discussion responses would not be incorporated into the offeror’s proposal, but that offerors must revise their FPRs to reflect any changes.
Jacobs also challenged the agency’s evaluation of TRAX’s proposed efficiencies. First, the protester argued that the agency either unreasonably credited TRAX for efficiencies implemented on the incumbent contract or failed to reasonably mitigate TRAX’s unfair access to information resulting from its performance on the incumbent contract. Second, Jacobs alleged that several of TRAX’s proposed efficiencies were inadequately explained and justified.
First, GAO explained that the existence of an incumbent advantage alone does not demonstrate the agency was biased towards an incumbent, nor is this advantage inherently unfair. GAO found no evidence the agency gave TRAX preferential treatment during the evaluation.
GAO also found Jacobs failed to support its allegation that the Army improperly credited TRAX for previously implemented efficiencies, but merely speculated that this was the case without evidence or specific examples of these efficiencies. GAO also rejected Jacobs’ arguments that the agency failed to mitigate TRAX’s unfair knowledge of the Army’s requirements based on its experience as the incumbent. Jacobs alleged TRAX’s insight allowed it to unfairly manipulate the RFP’s staffing baseline data. However, GAO found the general statements in TRAX’s proposal reflected typical information an incumbent would observe during the course of performance, not any special information the awardee obtained unfairly. GAO also found that TRAX’s proposed efficiencies were adequately explained and justified.
Finally, Jacobs argued the agency unfairly assigned a weakness to its proposal based on its proposed reduction in baseline hours, without assigning a weakness to TRAX’s proposal for a similar feature. However, GAO found the differing evaluation findings were based on the unique aspects of each proposal. GAO also noted that Jacobs ignored the fact that the weakness assigned to its proposal arose from an ambiguity in its proposal.
Next, Jacobs challenged the past performance evaluation, arguing that the Army relied on irrelevant instances of adverse past performance, failed to reasonably consider the totality of Jacobs’ past performance, or failed reasonably consider the effectiveness of corrective actions. For example, Jacobs objected to the Army’s consideration of a 2013 incident involving the protester’s loss of a government furnished laptop. While the laptop did not contain classified information, the Army’s cure notice expressed concern that the loss of the laptop was not reported until 8 months after Jacobs learned it was missing. Based on Jacobs’ response and corrective action, the Army reduced the cure notice to a letter of concern. Jacobs complained that the Army unreasonably allowed this single negative instance to overshadow its otherwise strong performance on the contract.
However, GAO found the agency reasonably considered this instance, as well as others to which Jacobs objected, explaining that these performance issues required the agency’s active intervention and oversight. Although consideration of past performance trends and corrective actions is generally appropriate, an agency is not required to ignore instances of negative past performance.
Next, Jacobs challenged the agency’s identification of two concerns with its small business participation proposal. The protester argued the Army failed to reasonably consider responsive information contained in its FPR. While the agency assigned the proposal a good rating for its approach to identifying small business firms, the evaluators found that Jacobs had not sufficiently identified the small disadvantaged business category of Historically Black Colleges and Universities/Minority Institutions (HBCU/MI) that would be used in performance of the contract.
Jacobs argued it had included the names of HBCU/MIs in its final proposal, but GAO found the proposal did not specifically identify HBCU/MIs that will actually perform on the resulting contract or what anticipated roles those entities would perform. Rather, the HBCU/Mis were identified as Jacobs’ current partners on an unrelated contract, and entities that it will contact in connection with this contract effort. GAO found no indication in the proposal that these entities have been approached regarding performance on the contract or had committed to doing so, unlike the presentation in Jacobs’ proposal regarding the other small business categories.
Second, the agency rated Jacobs’ proposal as acceptable with respect to the complexity and variety of work that small business firms were proposed to perform. Specifically, the evaluators found that Jacobs had identified the general PWS areas that the subcontractors would perform, but had failed to provide sufficient detail on the complexity of the effort that would be assigned to subcontractors. GAO found the rating reasonable, noting the agency did not assign a deficiency or allege that Jacobs failed to address this area. While Jacobs argued the level of detail it provided warranted a higher rating, GAO found this disagreement provided no basis to question the agency’s evaluation or sustain the protest.
Jacobs Technology Inc. is represented by Robert J. Symon, Aron C. Beezley, Amy E. Garber, Sarah S. Osborne, Lisa A. Markman, and Marcus Augustine of Bradley Arant Boult Cummings LLP. TRAX International Corporation is represented by Amy Laderberg O’Sullivan, Olivia L. Lynch, James G. Peyster, Robert J. Sneckenberg, and Nkechi A. Kanu of Crowell & Moring LLP. The government is represented by Scott N. Flesch and Bruce Robinson, Department of the Army. GAO attorneys Evan D. Wesser and Edward Goldstein participated in the preparation of the decision.
