NTT Data Services Federal Government, LLC, GAO B-320274, B-420274.2
Protest challenging agency’s evaluation of proposals is denied. The protester alleged the agency misevaluated the awardee’s experience, but GAO found this argument was based on misguided assumptions about the solicitation. The protester also contended the agency relaxed a solicitation requirement for the awardee. GAO determined that the alleged requirement was not a requirement. Indeed, if it had been a requirement, it would have resulted in an absurdity. Compliance with the purported requirement would have been logically impossible.
Background
Customs and Border Protection (CBP) issued an RFP seeking independent verification and validation services for products and systems acquired for border control and security. CBP received three proposals. After an initial evaluation, CBP narrowed the evaluation to two offerors: NTT Data Services Federal Government and American Systems Corporation (ASC). CBP awarded the contract to ASC, finding that the company’s proposal was higher-rated and cheaper than NTT’s. NTT protested.
Legal Analysis
- Challenge to Corporate Experience Evaluation Failed – NTT contended that CBP bungled the evaluation of ASCs corporate experience. The evaluation of experience, NTT argued, was supposed to be based on the experience of the prime, but NTT’s staffing plan showed the company was dependent on subcontractors. Thus, NTT alleged, given ACS’s proposed role, it was unreasonable for CBP to have credited ASC for its own experience. GAO found this failed to state a valid basis of protest. The solicitation hadn’t stated that the evaluation of experience would consider staffing plans. Indeed, experience was assessed in the first phase of the evaluation, so CBP didn’t have ASC’s staffing plan when it considered experience. NTT’s argument was based on unwarranted assumption concerning the solicitation,
- Alleged Relaxed Requirement Wasn’t Really a Requirement – NTT claimed the soliciaton required proof of firm commitment from all proposed personnel. NTT argued that CBP had relaxed this requirement for ASC. GAO found no such requirement in the solicitation. Indeed, such a requirement would’ve been absurd. The solicitation had a 60 page limit. Offerors could not have complied with that limit while providing commitment letters for 100 proposed positions.
- NTT Wasn’t Prejudiced by a Wrongly Assessed Risk – NTT objected to the risks assessment to its proposal under the technical/management factor. GAO agreed that CBP had applied unstated criteria in assessing one of these risks. But in light of other risks assigned to its proposal, GAO found that NTT had not been prejudiced by the CBP’s error.
- Cost Realism Analysis Was Reasonable – NTT complained about the CBPs cost realism evaluation, arguing that the agency failed to properly evaluate ASC’s subcontractor rates and uncompensated overtime. GAO found the evaluation reasonable, and even if the evaluation had been flawed, NTT had not been prejudiced. Any upward adjustment in ASC’s costs would have still resulted in the company having a less expensive proposal than NTT.
NTT is represented by Kevin J. Maynard, George E. Petel, Cara L. Lasley, and Nicholas >l Perry of Wiley Rein LLP. The intervenor, ASC, is represented by Katherine Burrows, Isaias Alba IV, Lauren Brier, and Eric Valle of PilieroMazza PLLC. The agency is represented by Ross D. Boone and Leahna M. Luke of the Department of Homeland Security. GAO attorney Heather Weiner and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
