Protest alleging that the awardee took exception to material solicitation requirements is sustained. The solicitation required the contractor to perform tasks according to a certain schedule. The awardee’s proposal stated that it may perform tasks in a different order than the schedule prescribed by the solicitation. GAO found that the decision to perform tasks in a different order took exception to material solicitation requirements, which made the awardee’s proposal unacceptable. GAO also found that the agency botched the award decision by failing to discuss the differences between proposals and simply making award based on numerical ratings.
The Department of Treasury issued a solicitation seeking a contractor to support the federal budget formulation requirements of the Department of Housing and Urban Development. Two offerors, Deloitte Consulting LLP and Grant Thornton LLP, submitted quotes. The Treasury Department initially awarded the contract to Deloitte, finding that it had a technically superior quote. Grant protested, and in response to that protest, the agency took corrective action to reevaluate proposals. Following a reevaluation, the Treasury Department awarded the contract to Grant. Deloitte then protested.
Deloitte alleged that Treasury should have found Grant’s quote unacceptable because the company took exception to material solicitation requirements. Specifically, the performance work statement required the contractor perform in three different phases. In its proposal, Grant indicated that it may perform tasks scheduled for one phase in a different phase.
GAO agreed with Deloitte. Grant had assumed in its proposal that it may perform a phase 2 task in phase 3 or in some undefined “future phase.” Indeed, it stated that it may perform other tasks in some “future phase.” There was, however, no future phase after phase 3. Grant’s assumptions, therefore, created doubt about when Grant planned to perform these tasks.
Treasury argued that it had addressed Grant’s assumptions concerning the scheduling of tasks during discussions. But GAO found the assumptions that the agency addressed in discussions were not the same assumptions at issue in the protest. The assumption raised during discussions addressed Grant’s ability to determine which tasks would be performed. The assumptions at issue in the protest concerned the timing of specific tasks.
Treasury also contended that it was aware of Grant’s assumptions, and that it had simply found the assumptions did not create enough risk to overcome Grant’s price advantage. GAO, however, noted that this argument had been raised for the first time by agency counsel in a supplemental memorandum of law without any citation in the contemporaneous record.
The agency further argued that Deloitte also made assumption that took exception to material solicitation terms. GAO rejected this argument, noting the Deloitte’s assumptions merely stated that company would work with the government to negotiate changes to the task order in the event the government required a change in scope. Unlike Grant, Deloitte had not indicated that it may elect to perform tasks in an order that differed from the PWS.
Aside from the take-exception argument, Deloitte challenged the source selection decision. Deloitte pointed to an email from the technical team to the contracting officer. In that email, the technical team stated that both quotes were equal except for one area where Deloitte had a slight advantage. The team recommended that the agency select Grant for award because of its lower price. The CO, acting as SSA, authored a glib award decision that similarly did not address differences between proposals. Deloitte claimed that from these documents, it appeared the agency relied solely on the numerical ratings assigned to the quotes and did not meaningfully consider strengths and weaknesses identified in each quote.
GAO once again sided with Deloitte. The award decision did not address how the contracting officer evaluated the differences between the vendor’s quotes. As an example, GAO noted, the CO sated in the decision that he did not believe the offeror’s quotes were equal under one of the factors, but did not explain which quote was more advantageous ofrwhat strength or weakness distinguished them. Additionally, the award decision failed to address the advantages of Deloitte’s higher rated quote. It simply noted, without detail, that Deloitte’s advantage did not warrant its higher price. GAO found that this conclusion did not meet the agency’s obligation to document advantages and explain why they are not worth the price premium.
Deloitte is represented by David S. Cohen, John J. O’Brien, and Daniel Strouse of Cordatis LLP. The intervenor, Grant Thornton, is represented by Alexander J. Brittan of the Brittan Law Group, PLLC as well as Jonathan D. Shaffer and Mary Pat Bruckenmeyer of Smith Pachter Mcwhorter PLC. The agency is represented by Ashlee Adams and Mary Schaffer of the Department of Treasury. GAO attorneys Jonathan L. Kang and Laura Eyester participated in the preparation of the decision.
