The protester said the agency erred in evaluating the awardee’s experience. The awardee was a joint venture. The awardee had submitted subcontracting experience of a JV member as an experience example. The protester argued the solicitation prohibited the agency from considering the subcontracting experience of JV members. GAO found the protester had misread the solicitation. In fact, if the protester’s reading were correct, it would lead to an absurd result.
Excalibur Consulting Services, LLC, GAO B-421190.2
Background
Immigration and Customs Enforcement (ICE) issued an RFP seeking various IT systems upgrades. The RFP separated the requirement into four domains. ICE would evaluate and make awards under each domain separately. The RFP anticipated awarding two IDIQ contracts for each domain.
ICE received six proposals for one of the domains, hyper automation. ICE awarded hyper automation contracts to two offerors, Stella JV and Unissant, Inc. An unsuccessful offeror, Excalibur Consulting, protested.
Analysis
Experience
Excalibur objected to ICE’s evaluation of Stella’s experience. Stella was a joint venture. Excalibur argued ICE improperly considered the subcontractor experience one of Stella’s members. Excalibur reasoned the solicitation prohibited ICE from considering the subcontractor experience of joint venture members.
Excalibur’s argument hinged on a single sentence in the solicitation. That sentence stated if a joint venture did not have prior experience, ICE could consider the experience each joint venture member performed as a prime contractor.
GAO found Excalibur was reading this sentence out of context. The experience factor required at least three experience examples. One example had to be from the prime contractor proposing to perform the requirement. Other examples could be from subcontractors. The sentence Excalibur relied on applied to joint ventures with no experience as a prime. GAO reasoned that sentence allowed JV’s to use the prime experience of a JV member. Contrary to Excalibur’s interpretation, the sentence did not prohibit ICE from considering a JV member’s subcontracting experience. Indeed, GAO noted, Excalibur’s reading led to an absurd result. If Excalibur were correct, then a JV with prime experience could also submit subcontracting experience. But a JV without prime experience could not rely on any subcontractor experience. GAO did not believe ICE had intended to make this distinction between JVs.
Disparate Treatment
Excalibur asserted numerous instances of disparate treatment. GAO found none of them compelling. In most instances, the difference in evaluation ratings stemmed from differences in proposals. Also, to the extent ICE disparately evaluated proposals, Excalibur had not been prejudiced.
Excalibur is represented by John R. Prairie, George E. Petel, and Lisa M. Rechden of Wiley Rein LLP. Intervenor Stella JV is represented by C. Peter Dungan, Roger V. Abbott, and Lauren S. Fleming of Miles Stockbridge P.C. Intervenor Unissant is represented by Jon D. Levin of Maynard Nexsen, P.C. The agency is represented by Javier A. Farfan of the Department of Homeland Security. GAO attorneys Samantha S. Lee and Peter H. Tran participated in the decision.
–Case summary by Craig LaChance, Senior Editor
