Protest challenging the agency’s evaluation of proposals and the best value tradeoff is denied. The protester alleged that it should not have received weaknesses for failing to demonstrate that it could satisfy the solicitation’s requirements. GAO, however, found that the weaknesses were warranted because instead of demonstrating its capability, the protester simply restated the solicitation’s requirements in its proposal. The protester further claimed that the agency failed to conduct meaningful discussions because it only told the protester that its price was too high when it should said its price was unreasonably high. GAO rejected this argument, reasoning the protester was effectively arguing that the agency failed to find a flaw with the protester’s proposal. The agency was not obligated to dissuade the protester from proposing an unreasonable price. Finally, the protester objected to the best value tradeoff. But GAO found the best value analysis reasonable. The protester had a higher-rated proposal but lost the contract because its price was six times higher than the awardee’s.
The National Institutes of Health published a solicitation for an enterprise system to manage the agency’s intellectual property. Several offerors, including Wellspring Worldwide, Inc. and Inteum Company LLC, submitted proposals. NIH awarded the contract to Inteum. Wellspring had a higher rated proposal, but its price was almost six time higher than Inteum’s. Wellspring filed a protest, challenging the evaluation of its proposal, the evaluation of Inteum, and the best value tradeoff.
Wellspring first argued that NIH erred in assigning a weakness to Wellspring’s proposal for failing to demonstrate its ability to satisfy requirements to create and manage agreements for NIH. Wellspring contended that portions of its proposal adequately addressed these requirements. But GAO found that Wellspring simply disagreed with NIH’s evaluation, and that this was not enough to sustain a protest.
Next, Wellspring objected to a weakness it received for failing to demonstrate its ability to monitor, investigate, and correct infringements of NIH intellectual property. GAO noted that it was not apparent from Wellspring’s proposal or from its protest that Wellspring had sufficiently demonstrated its ability to perform these tasks. Rather, Wellspring simply restated the bulleted requirement of the SOW. Restating the requirement of the solicitation does not satisfy an offeror’s obligation to submit a well-written proposal.
Wellspring further claimed that NIH’s evaluation of Inteum was inadequate because the awardee failed to propose commercial software that satisfied the solicitation’s minimum technical requirements. Specifically, Wellspring argued, Inteum’s approach did meet the browser compatibility requirements because its system would only work with browsers that were compatible with a Microsoft Silverlight plug-in.
NIH responded that the software Inteum proposed satisfied the SOW. Based on Inteum’s technical quote and demonstration, it appeared that its approach supported all the browser that NIH used. Wellspring argued that GAO should ignore NIH’s arguments because they were inconsistent with the contemporaneous record. But GAO did not find NIH’s explanation inconsistent with the record; rather, NIH’s additional post hoc statements simply provided additional details regarding the evaluation.
As an additional protest ground, Wellspring contended that NIH did not provide meaningful discussions. During discussions, NIH notified Wellspring that its price was too high. Wellspring argued that NIH should have stated instead that is price was unreasonably high.
GAO found that Wellspring was essentially arguing that NIH erred in failing to determine that its price was unreasonably high. This argument ignored Wellspring’s own actions and sought to place on the agency the burden of dissuading Wellspring from attempting to charge an unreasonable price.
Wellspring next argued that Inteum should have been found technically unacceptable because its price proposal took exception to the terms of the solicitation. The solicitation required offerors to identify and price whatever customization of their software solution might be required during a six-month integration phase. Wellspring, however, claimed that a footnote in Inteum’s proposal reserved the unilateral right to charge for other, unidentified customization work that was discovered during the implementation phase.
GAO, however, found that this footnote was limited to only one line item in Inteum’s proposal. Moreover, GAO did not believe the footnote took exception to the terms of the solicitation. The agency reasonably interpreted the footnote as stating that Inteum’s customization price was based on the information and requirements of the solicitation. The footnote simply clarified what it would cost to perform any additional work above the requirements in the solicitation.
Finally, Wellspring alleged that NIH’’s best value tradeoff was flawed because the agency failed to look behind the ratings and compare the relative merits of quotes. But the record showed that NIH looked beyond the ratings and acknowledged that Wellspring’s proposal was superior to Inteum’s. The benefits of Wellspring’s proposal, however, did not justify its 290 percent price premium.
Wellspring is represented by David T. Ralston, Frank S. Murray, Julia Di Vito, and Micah T. Zomer of Foley & Lardner LLP. The agency is represented by Anthony E. Marrone and Pamela Waldron of the Department of Health and Human Services. GAO attorneys Heather Weiner and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
