From the Annals of Ill-Fated Protest Arguments, Special Snowflake Edition: Agency Not Required to Assess Strength for “Uniqueness” of Offeror’s Approach; Metric 8, LLC, M6-VETS, LLC, RCH Partners, LLC, Stratera Fulcrum Technologies, LLC, MERPTech, LLC, GAO B-419759.2

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Protests challenging various aspects of the agency’s evaluation are denied. The protesters alleged that adjectival ratings did not correspond to the strengths and weaknesses assigned. GAO found that this argument amounted to disagreement with the agency’s evaluation conclusions. One of the protesters complained that it had not received a strength for the uniqueness of its proposal. GAO reasoned that nothing in the solicitation stated that offerors would be evaluated for uniqueness. The protesters asserted that the agency disparately evaluated proposals, but GAO found the protester’s proposals were distinguishable from the awardees’. The protesters objected in various ways to weaknesses assigned to their proposals and strengths assigned to the awardees, but these arguments amounted to disagreement with the evaluation. GAO did find that the agency erred in crediting one of the awardees with a past performance reference that was performed by the awardee’s subsidiary. Even so, GAO concluded that none of the protesters had been prejudiced by this error.

The U.S. Patent and Trademark Office (PTO) issued an RFP seeking information technology development, modernization, and enhancement services. The RFP contemplated the award of multiple IDIQ contracts. The PTO intended to award  60 percent of the IDIQ contracts to small businesses.

The PTO received 24 proposals. After evaluating and performing a best-value analysis, the PTO awarded two contracts to large business—Booz Allen Hamilton, SAIC—and three contracts to small businesses—Halvik, Inc., RIVA Solutions, Steampunk, Inc. Protests were filed by five unsuccessful small business offerors: Metric 8 LLC, M6-VETS, LLC, RCH Partners, LLC, Stratera Fulcrum Technologies, LLC, and MERPTech, LLC.

M6-VETS alleged that the assignment of adjectival ratings under the RFP’s technical approach factor was unreasonable because the ratings did not correspond with the number of strengths and weaknesses assessed to each proposal. GAO, however, noted there is no legal requirement that an agency award the highest possible rating under an evaluation factor simply because the proposal contains strengths or lacks weaknesses. Strengths and weaknesses  are merely guides to, not a substitute for, intelligent decision making. The RFP defined a superior rating under the technical factor as significantly exceeding the solicitation requirement. Here, while the PTO found that M6-VETS’s approach was comprehensive, it reasonably determined that the company’s proposal did not exceed the solicitation’s requirements. M6-VETS’s argument was simply disagreement with the agency’s judgment.

RCH objected to the evaluation on the grounds that the PTO failed to the consider the uniqueness of its approach when assessing strengths under the technical factor. Indeed, RCH contended that agency had disparately evaluated offers, assessing strengths to the unique aspects of other proposals but not to the unique aspects of RCHs’ approach.

GAO rejected this argument. Nothing in the RFP required the PTO to evaluate proposals for uniqueness. Moreover, RCH had failed to explain how the unique aspects of its approach would increase the potential for successful contract performance. Also, while RCH pointed to unique aspects of other proposals that the PTO considered strengths, it had not demonstrated that those strengths were assessed simply because those aspects were unique.

RCH and Stratera complained that the PTO disparately evaluated their technical approaches relative it RIVA’s. They claimed that RIVA had been assessed a strength for proposing specific development methodologies, while they had not received a strength for proposing nearly identical features. But GAO saw no unequal treatment. RIVA’s proposal contained a workflow diagram and a narrative outlining its use of the development methodologies. RCH’s and Stratera’s proposals lacked the same level of detail.

Stratera alleged the PTO unreasonably assessed its proposal a weakness for lacking detail on microservices architecture. GAO, however, noted that the RFP stated that the PTO would evaluate technical approaches by assessing how well the proposed systems would perform as part of a holistic approach. While Stratera’s proposal made references to microservices, GAO noted the proposal lacked any significant explanation of how the company would implement its microservices architecture. GAO had no basis to question the PTO’s assessment.

RCH, MERPTech and Metric 8 contended the PTO unreasonably assessed a strength to Halvik’s proposal for its employee retention plan but did not assess them strengths for virtually identical features. GAO, however, found that Metric 8’s plan was not virtually identical to Halvik’s because Metric 8 had not proposed a plan founded on “open and frequent communications with staff.”

While RCH and MERPTech acknowledged that Halvik’s plan contained aspects their proposals did not, they argued the alleged beneficial aspects of Havlik’s proposal had not been identified in the contemporaneous record. Thus, RCH and MERPTech contended, the PTO’s post-protest explanation for the strengths assigned to Havlik was simply a post hoc rationale. But GAO found that the PTO’s explanations were not inconsistent with the contemporaneous evaluation record. The PTO had simply explained why it found certain features of Havlik’s proposal beneficial. GAO had no basis to question the evaluation.

M6-VETS disputed a significant weakness assessed to its proposal for a lack of detail supporting its transition out plan. M6-VETS argued that because this procurement sought to award IDIQ contracts rather than single task orders, it was difficult to establish a single transition plan for individual orders. But GAO found that M6-VETS’s proposal simply did not describe the significant actions of transition out plan with any detail. The PTO rightly concluded that this minimal approach was a flaw in M6-VETS’s approach.

M6-VETS alternatively argued that the RFP contained a latent ambiguity with respect to the transition out plan. M6-VETS alleged that it reasonably interpreted the RFP as stating that the onus of transition-out activities was on the agency, not the offeror. GAO found this interpretation unreasonable. Indeed, following an RFP amendment, an offeror had asked a question about transition plans. The PTO responded that the offeror, not the agency, was required to describe their transition approach and provide transition timelines. GAO did not believe the RFP contained a latent ambiguity regarding transition.

Stratera objected to a weakness it received for providing 14-day transition and insufficient detail regarding its communication with vendors. GAO found that the PTO reasonably concluded that 14-day transition period was too short and that Stratera did not provide enough detail about its plan.

Stratera and RCH challenged the evaluation of their past performance, arguing that the PTO should have more positively considered their past performance references that were more recent and more relevant than other offerors’ references. GAO noted that the RFP provided standards for recency and relevance, but it did not contemplate that the agency would assess relevancy across a qualitative spectrum. Rather, the RFP only provided a for a binary determination, i.e., relevant or not relevant. While all the offerors’ references did not have identical scopes of work or performance history, Stratera and RCH had not established that any of the awardee’s references did not meet the relevancy criteria.

Stratera and MERPTech alleged that the PTO’s past performance evaluation amounted to a mere number counting exercise, and that the agency had failed to qualitatively assess performance or consider contract summaries. GAO disagreed, finding that the record showed that the agency considered qualitative information provided in past performance questionnaires submitted by contract references. GAO found that the protesters’ arguments in this respect amounted to disagreement with the agency’s evaluation conclusions.

Metric 8, RCH, and Stratera all contended that Halvik failed to comply with a solicitation requirement regarding past performance. The RFP required that offerors submit at least two past performance references for work the offeror itself performed. The protesters argued that Halvik had submitted a performance reference that had actually been performed by a wholly-owned subsidiary.

GAO agreed with the protesters on this argument. The RFP required offerors to clearly define which entity performed the work. Havlik’s subsidiary, not Havlik itself, performed the work in one of the references. Nevertheless, GAO concluded that the protesters had not been prejudiced by this error. There was another, non-protesting offeror that had a higher technical rating than all the protesters. Even if the PTO had downgraded Havlik, none of the protesters would be in line for award.

MERPTech challenged the source selection decision, arguing that the PTO gave undue weight to less important evaluation factors. GAO, however, reasoned that a source selection decision that turns on an less important evaluation consideration is not inherently objectionable; there is no requirement that an award discriminator be found under the most heavily weighted factor. Thus, in this case, a proposal with a significantly more advantageous approach to program management could be higher technically rated than a proposal with only marginal advantages on the more important in technical approach.

Metric 8 is represented by Damien C. Specht, James A. Tucker, and David Allman of Morrison & Foerster LLP. M6-VETS is represented by Ryan C. Bradel, P. Tyson Marx, Stephen G. Darby, and Chelsea A. Padgett of Ward & Berry PLLC. RCH Partners is represented by Jon Davidson Levin, W. Brad English, and Emily J. Chancey of Maynard Cooper Gale. Stratera is represented by Jonathan T. Williams, Meghan F. Leemon, Eric A. Valle, and Christine C. Fries of PilieroMazza, PLLC. MERPTech is represented by J. Alex Ward, Rachael K. Plymale, and Caitlin Crujido of Morrison Foerster LLP. Intervenor Halvik is represented by Alexander J. Brittan of Brittan Law Group, PLLC and Mary Pat Buckenmeyer of Dunlap Bennett & Ludwig PLLC. Intervenor RIVA is represented by  Elizabeth N. Jochum, Todd M. Garland, and Nora K. Brent of Smith Pachter McWhorter PLC. Intervenor Booz Allen Hamilton is represented by Gary J. Campbell, G. Matthew Koehl, and Lidiya Kurin of Womble Bond Dickinson (US) LLP. Intervenor SAIC is represented by James J. McCullough, Michael J. Anstett, Anayansi Rodriguez, and Christopher H. Bell of Fried, Frank, Harris, Shriver & Jacobson LLP. Intervenor Steampunk is represented David S. Black, Gregory R. Hallmark, Amy L Fuentes, Kelsey M. Hayes, and Hillary J. Freund of Holland & Knight LLP. The agency is represented by Andrew Squire and Chieko M. Clarke of the Department of Commerce. GAO attorneys Christopher Alwood and Christina Sklarew participated in the preparation of the decision.

GAO - Metric 8 LLC