GAO Finds CIO-SP4 Solicitation Treats Mentor-Protege JVs Unequally And Unduly Restricts Competition; Computer World Services Corporation; CWS FMTI JV LLC, GAO B-419956.18 et al.

Protest challenging the terms of a solicitation is sustained in part. The solicitation required offerors to list experience examples for certain task areas. But for mentor-protege JVs, a large business protege was limited in the experiences it could list. GAO found this restriction unreasonable. First, the agency had failed to justify the limitation. A restriction on the experience of large businesses is permitted to ensure that a protege has experience. In this case, however, the soliciaton limited the experience of a large business mentor without requiring a protege to demonstrate any experience. Second, the limitation only applied to JVs with large business mentors and not to JV with small business mentors. Thus, the limitation unreasonably favored JVs with small business mentors.

Background

The National Institute of Health issued the Chief Information Officer-Solutions and Partners (CIO-SP4) solicitation. The solicitation contemplated the award of multiple, IDIQ contracts for information technology to different sized businesses.

The solicitation provided for a three-phase evaluation. In the first phase, offerors had to submit a self-scoring sheet for experience in certain task areas. Offerors had to list at least one but not more than three experience examples for each task area. For offerors that were mentor-protege joint ventures, a large business mentor could only list two of the examples for each task area.

Computer World Services, an emerging large business, and CWS FMTI JV, a small business mentor-protege JV in which Computer World was the mentor, filed protests challenging the solicitation. CWS FMTI argued that the self scoring sheet improperly limited the experience a large business mentor could claim. CWS FMTI also complained that NIH was likely to make an improper responsibility determination. Computer World and CWS FMTI further contended the solicitation improperly required offerros to identify the obligated value, as opposed to the awarded value, of past contracts.

Legal Analysis 

• Limitations on Large Business Experience Were Unreasonable — in a previous case, GAO found that a solicitation may reasonably limit the amount of experience that a large business may submit to ensure that the protege submits at least some experience to demonstrate its ability to perform. In that case, the solicitation required the protege to submit some experience examples. Here, however,the solicitation did not require the protege to submit any experience. Thus, a large business mentor could submit all the experience and there would be no way for NIH to assess the protege’s ability to perform. Because there was no way to assess a protege’s experience, NIH had failed to justify the limitation on the experience a large business could submit.
• Limitation on Large Business Treated Offerors Unequally — CWS FMTI further argued that the limitation on a large business’s experience was unreasonable because it treated mentor-protege JVs with large business mentors differently than mentor-protege JVs with small business mentors After all, a JV with a small business mentor did not have any limit on the experience a small business mentor could list. GAO agreed. The purpose of the mentor-protege program is to allow a protege to benefit from the experience of a mentor. In light of this purpose, NIH had not explained why it had effectively favored JVs with small business mentors over those with large business mentors.
• Challenge to Responsibility Determination Was Premature — CWS FMTI argued that based on NIH’s responses to the challenge to the experience limitation, the agency intended to assess the responsibility of mentor-protege JVs based on the experience of the small business protege member. GAO noted that the solicitation did not anticipate the assessment of responsibility in phase 1. Responsponsibility would not be assessed until phase 3. Any challenge to the responsibility should be asserted after the phase 3 evaluation.
• Requiring Obligated Value of Past Contracts Was Reasonable — The solicitation required offerors to identify the obligated value of contracts—the amount actually funded—of past contracts, not the awarded value. The protesters argued this was unduly restrictive because the obligated value was often less than the awarded value. GAO, however, found that NIH had reasonably determined the obligated value was a better proxy for measuring experience.

Computer World and CWS are represented by Michelle E. Litteken, C. Kelly Kroll, and Andrew J. Mohr or Morris, Manning, LLP. The goverments is represented by Karyne Akhtar and Krystal A. Jordan of the Department of Health and Human Services and by Meagan K. Guerzon of the Small Business Administration. GAO attorney Jonathan L. Kang and John Sorrenti participated in the preparation of the decision.