Incumbent Complained Agency Assessed a Strength to the Awardee for Proposing Incumbent Staff But Didn’t Assess Similar Strength to the Incumbent. Why Did GAO Reject the Argument?

The agency credited the awardee for proposing incumbent staff. The protester, who was the incumbent, alleged unequal treatment, arguing it should’ve also received credit for proposing incumbent staff. But GAO found the agency had credited the protester for its staff’s experience, which was effectively the same thing as proposing incumbent staff. 

NTT Data Services Federal Government, LLC, GAO B-421708.3, B-421708.4 

• Subordinate Requirement – The protester objected to a weakness it received for not proposing technological innovations. The protester argued the innovations requirement was subordinate and insignificant. Not so, said GAO. The solicitation specifically required offerors to propose innovations. Moreover, when read as a whole, the solicitation made it clear innovations were important to the agency. 
• Actual Innovations – Even if the solicitation required innovations, the protester argued it had satisfied that requirement. GAO disagreed. The protester, who was the incumbent, had proposed continued use of current technologies; it had not proposed anything innovative. 
• Awardee’s Proposal – The agency assessed the awardee two significant strengths for its description of middleware management and for its familiarity with application platforms. The protester said the awardee didn’t deserve those significant strengths. But GAO found the protester had not demonstrated the significant strengths were unreasonable. 
• Disparate Treatment – The protester argued the agency disparately evaluated proposals. The agency assessed a strength to the protester for proposing incumbent staff. The protester argued that as the incumbent, it should have also received a strength for proposing incumbent staff. But the agency had assessed the protester a strength for the experience of its staff. While the agency did not use the same words, it had effectively given the incumbent a strength for its incumbent staff. GAO found no disparate treatment. 

The protester is represented by John E. Jensen, Toghrul M. Shukurlu, Robert C. Starling, and Aleksey R. Dabbs of Pillsbury Winthrop Shaw Pittman LLP. The awardee is represented by Adam Bartolanzo, Lauren S. Fleming, Alfred M. Wurglitz, and C. Peter Dungan of Miles & Stockbridge P.C. The agency is represented by Jared Buff, Elise Harris, and DeAnna Arcement of the Department of Health and Human Services. GAO attorneys Christine Milne and Tania Calhoun participated in the decision. 

–Case summary by Craig LaChance, Senior Editor