Protest challenging the agency’s evaluation of the awardee and the protester is sustained. The protester argued that the agency unreasonably evaluated the awardee’s past performance. GAO agreed, finding that the agency inexplicably treated the awardee’s past contracts, which were worth only a fraction of the current procurement, as similar contracts. The protester also objected to a weakness assigned to its technical proposal for taking credit for a government innovation. The agency claimed this was a “misrepresentation” and “perfidious.” The solicitation, however, only allowed the government to assess strengths for innovations, not to assign weaknesses for the lack of innovation. Even if the agency thought that the protester had perfidiously claimed an innovation, it did not warrant a weakness. The protester further objected to a weakness that had been resurrected in the selection decision after it had been removed following an initial protest. The agency claimed the weakness was simply a “legacy comment” that did not impact the award decision. But GAO noted that the decision specifically identified the revived weakness as a discriminator.
The Department of State (DOS) issued an RFQ seeking IT services. Business Integra Technology Solutions, Inc. (BITS) and Soft Tech Consulting, Inc. submitted quotes. DOS made award to Soft Tech. BITS protested challenging the evaluation of its own and Soft Tech’s quotes. In response to the protest, DOS took corrective action to reevaluate quotes.
Following the reevaluation, DOS again selected Soft Tech for award. BITS filed a second protest again challenging various aspects of the agency’s evaluation. In light of the protest, DOS announced that it would take a limited corrective action to correct a computation error in the price evaluation and conduct a new trade-off analysis.
After this second corrective action, DOS once again selected Soft Tech for award. BITS filed a third protest.
In its third protest, BITS objected to evaluation of Soft Tech’s past performance, alleging that DOS had unreasonably evaluated the dollar amount of the company’s past contracts. BITS noted that the estimated value of the contract was $19 million, but DOS considered any past contract with a value of at least $1 million to have a similar dollar value.
A past performance evaluation is unreasonable when the solicitation requires an agency to compare the value of prior contracts to the value of the solicited requirement, and the agency fails to explain why the comparatively small-value prior contracts provide a basis for a high past performance rating.
Here, GAO determined that DOS had not adequately supported its conclusions that Soft Tech’s past contracts were similar in value to the current procurement. Contracts that reflect only a small fraction of the value of the contract being competed are not reasonably considered similar. In this case, Soft Tech’s prior contract were valued at $3.2 million, $2.5 million, and $2.3 million. Nothing in the record explained why DOS though these contracts were similar in value.
Next, BITS challenged a weakness assigned to its technical proposal. BITS has asserted that its technical approach was innovative. This claim, however, did not sit well DOS. The agency assigned a weakness, opining that BITS, which was the incumbent, was taking credit for innovations that were initiated by the government. DOS asserted that BITS claim was a “misrepresentation” and “perfidious in nature.” BITS contended that while DOS may have disputed which party came up with the innovation, this did not justify the assessment of a weakness.
GAO agreed with BITS. The solicitation advised offerors that the agency would consider proposed innovations as assigned strengths. But nothing in the solicitation indicated that the failure to propose an innovation would result in a weakness. While GAO did not criticize the agency for declining to assign strengths to portions of BITS’s proposal that it did not consider innovative, GAO rejected the assessment of weakness based on the purported “perfidious” nature of BITS’s proposal.
BITS also challenged a discrepancy in the final source selection decision. In the first decision, the contracting officer had found BITS’s time-limited retention bonuses to be a weakness. In its first protest, BITS had argued that its bonuses were not time limited. After taking the first corrective action, DOS removed this weakness from its evaluation report. But for whatever reason, after the second protest and second corrective action, the contracting officer reinstated this initial criticism of BITS’s bonuses as a basis for making award to Soft Tech. Indeed, it appeared as if the contracting officer had cut and pasted the language from the first evaluation.
The contracting officer attempted to downplay this by characterizing the reappearance of this language as a “legacy comment” that did not affect the trade-off analysis. GAO wasn’t buying it. The source selection decision clearly relied on the perceived risk of BITS’s retention bonuses. GAO declined to give any weight to the contracting officers post-protest declaration that the resurrected weakness did not impact the award decision.
Finally, BITS alleged that DOS failed to reasonably evaluated price. After the second corrective action, DOS had stated that it would conduct a new tradeoff analysis that would include offerors’ total prices, which included the cost of Defense Base Act insurance. The final tradeoff analysis, did not included the DBA insurance.
DOS responded that it did not include DBA insurance because it was a not-to-exceed cost reimbursable CLIN. But GAO noted that DOS offered no meaningful explanation as why other not-to-exceed items were not treated in a similar manner. Nor had the agency explained why it had expressly stated that it would it consider DBA insurance as part of its corrective action but then performed a tradeoff without considering the insurance. GAO found that without consideration of the DBA insurance, the tradeoff had not been based on the offerors’ final prices and thus had not complied with the solicitation.
BITS is represented by Carla Weiss, Noah B. Bleicher, Matthew L. Haws, and Eric K. Herendeen of Jenner & Block LLP. The intervenor, Soft Tech, is represented by Aron C. Beezley, Patrick R. Quigley, Lisa A. Markman, Sarah S. Osborne, and Nathaniel J. Greeson of Bradley Arant Boult Cummings, LLP. The agency is represented by Kathleen D. Martin of the Department of State. GAO attorneys Glenn G. Wolcott and Christina Sklarew participated in the preparation of the decision.
