Protester Tries (and Fails) to Argue Self-Negating Tautology: “I’m Not Making a Price Realism Argument, I’m Just Sayin’ the Awardee’s Low Price Indicates an Unfeasible Approach”; Innovative Management Concepts, Inc., GAO B-419834.2, B-419834.3

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Protest challenging agency’s evaluation of proposals is denied. The protester challenged weaknesses assessed to its quotation, but GAO found the weaknesses were warranted. The protester alleged disparate treatment, but the different evaluation ratings were based on material differences between quotations. The protester alleged that the awardee’s low price indicated that its approach was not feasible. GAO determined that this was an impermissible price realism argument. The protester objected to various aspects of the past performance evaluation, but GAO opined that the evaluation was consistent with the terms of the solicitation.

The Department of Energy (DOE) issued a solicitation to SDVOSB holders of GSA’s Veterans Technology Services IDIQ contract. The solicitation sought various information technology services.

Six vendors, including the incumbent, Innovative Management Concepts, Inc. (IMC), a Epsilon, Inc., submitted quotations. DOE found that IMC’s technical approach was slightly superior to Epsilon’s and that as the incumbent, IMC had very relevant experience. Nevertheless, DOE found that IMC’s $33 million price premium was not worth its slight technical advantage. DOE selected Epsilon for award. IMC protested.

IMC objected to weakness assigned to its proposal for failing to adequately address the provision of cloud-related services. DOE noted that while IMC’s question mentioned the cloud several times, the company did not elaborate on its understanding of the cloud. IMC, however, pointed to statements in quotation that demonstrated its understanding of the cloud.

But GAO agreed with the agency that the statements in IMC’s quotation merely restated portions of the solicitation without providing additional detail. GAO saw no basis to question DOE’s evaluation.

IMC claimed DOE disparately evaluated quotations in various ways. GAO found that the evaluators assessments were reasonable because there were substantive differences between proposals. As an example, GAO noted that Epsilon had received a strength for proposing a call center with 24/7 support. IMC claimed that it too had proposed a 24/7 call center. But GAO found that IMC had not proposed 24/7 support for its call center. Instead, it had merely offered to provide staff to ensure the call center could provide coverage during requested hours.

IMC argued that Epsilon’s significantly discounted price indicated that it could not have submitted a feasible plan to hire staff. DOE responded that IMC was essentially complaining about the lack of price realism evaluation, but the solicitation was for a fixed-price contract and did not require a price realism argument. IMC tried to argue that it was not really making a price realism argument; it was simply noting that Epsilon’s low price indicated that DOE had failed to evaluate staffing approaches. GAO found that contrary to IMC’s contentions, this was a price realism argument. GAO dismissed it for failing to state a legally sufficient basis of protest.

IMC objected to the evaluation of Epsilon’s program manager. The evaluators had assessed a weakness to Epsilon because its program manager lacked project management experience on a contract of similar size. The evaluators noted, however, that the program manager’s lack of experience was mitigated by Epsilon adding a deputy program manager position. IMC argued that DOE should not have considered the deputy program manager to be a mitigating factor and that the agency should have assessed Epsilon a significant weakness. But GAO found that this argument amounted to disagreement with the agency’s evaluation conclusions.

IMC contended that DOE should have deemed Epsilon ineligible for award because it failed to submit past performance reference for itself as the prime contractor. GAO rejected this argument. As an initial matter, the solicitation provided that the past performance of subcontractors would be evaluated. Moreover, even if the solicitation had required vendors to submit past performance for themselves as a prime contractor, this would not have required the agency to find Epsilon ineligible for award. Rather, the solicitation provided that a prime vendors without past performance would simply receive a neutral past performance rating.

IMC complained that the DOE unreasonably found two of Epsilon’s subcontractors’ past performance references relevant. IMC argued that the references did not include some of the types of work required by the PWS. But GAO noted that the solicitation did not require references to cover all the PWS tasks; it only required references that were similar in scope, size, and complexity.

IMC is represented by Erin L. Felix, Holly A. Roth, and Elise S. Seale of Polsinelli PC. The intervenor, Epsilon, is represented by James W. Norment of Ward and Smith and John J. O’Brien of Cordatis LLP. The agency is represented by Nicholas M. Bidwell, Eric F. Mulch, Kevin R. Hilferty, Thomas Cordova, and Elizabeth Cypers of the Department of Energy. GAO attorneys Heather Self and Peter H. Tran participated in the preparation of the decision.

GAO - Innovative Management Concepts