Incumbent’s Program Manager and Evaluator Were Facebook “Friends” But Relationship Did Not Create Conflict of Interest; D&G Support Services, LLC, GAO B-419245, B-419245.3

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Protest challenging evaluation of proposal and alleging a conflict of interest is denied. The protester alleged the agency assigned risks to its proposal, but GAO found the risks warranted. The protester alleged disparate treatment, yet GAO found the different ratings assigned to the protester and awardee were based on qualitative differences in their quotations. The protester contended the awardee was not going comply with the solicitation’s limits on subcontracting. GAO, however, found this argument speculative. The protester also asserted the awardee had a conflict because one of its program managers was friends on Facebook with one of the evaluators, and they had attended social events together. GAO opined that the merely being connected on social media and attending work-related social events together did not give rise to a conflict.

The Department of Homeland Security (DHS) issued an RFQ seeking services for the countering weapons of mass destruction systems support directorate. The solicitation was set aside for small businesses. DHS received quotations from D&G Support Services and Mayvin Inc. among others. DHS awarded the contract to Mayvin, finding that its higher-rated, albeit higher-priced, proposal represented by best value to the government. D&G protested.

D&G complained that DHS had unreasonably assigned risks to multiple aspects of its quotation. GAO found that these risks were all reasonable, adequately documented, and assigned in accordance with the solicitation. As an example, D&G had received a risk for its mapping of proposed labor categories to DHS’s labor categories. GAO found the risk was warranted. D&G had mapped a position to an Information Security Interest labor category without discussing information security explaining how its approach would translate to the specific information security requirements.

D&G argued that DHS improperly attributed risk to D&G’s quotation because D&G was not the incumbent firm. GAO disagreed, noting that DHS had not penalized D&G for its lack of incumbency; rather, DHS had simply found Mayvin’s approach superior. Even if DHS’s evaluation was predicated on Mayvin’s incumbency, it wouldn’t have been problematic. A competitive advantage gained by an incumbent contractor is not improper. An agency is not required to equalize competition.

D&G contended DHS engaged in disparate treatment when it credited Mayvin for its approach to ensuring delivery of quality work products but did not similarly D&G for using the same delivery model. GAO opined that Mayvin’s approach provided more detail and included a graphical explanation.

D&G complained about the past performance evaluation, arguing that the agency had unreasonably found one of its reference with $49.7 million value not relevant in size while finding another reference valued at $50 million relevant. GAO reasoned that, by itself, there was nothing improper about DHS finding a $49.7 million reference not relevant. It could be that the error lied with the agency determining that a $50 million contract was relevant. Moreover, D&G had not explained why a $50 million size relevancy threshold would be per se unreasonable.

D&G next contended that DHS’ past performance evaluation was narrowly focused on certain subtasks in the statement of work. But GAO found the focus on these subtasks unobjectionable. These three areas were the most substantive of the statement of work.

D&G alleged that Mayvin was not complying with the solicitation’s small business set-aside requirements because it planned to subcontract more than 50 percent of the work to a large business. GAO noted that compliance with subcontracting limitations is presumed unless there is something in the quotation that specifically negates such compliance. Nothing on the face of Mayvin’s quote indicated that the company would not comply with the subcontracting limitations. Instead, D&G’s argument was based on “speculative hypothetical analysis.”

Lastly, D&G asserted that one of the program manager’s for Mayvin’s subcontractor had a close personal relationship with one of the DHS evaluators and that this relationship created the appearance of a conflict of interest. GAO found that the manager and the evaluator had a working relationship. They were “friends” on Facebook, and they had attended work-related social functions like happy hours and going away parties. But the mere fact that they were connected on social media and attended social events did not support D&G’s allegations of a conflict.

D&G is represented by Michael J. Gardner, Shomari B. Wade, and Brett Castellat of Greenberg Traurig LLP. The intervenor, Mayvin, is represented by Stephanie D. Wilson and Terrence M. O’Connor of Berenzwieg Leonard, LLP. The agency is represented by Christine Fontenelle of the Department of Homeland Security. GAO attorneys Michael P. Grogan and Edward Goldstein participated in the preparation of the decision.

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