The protester alleged the agency had improperly showed favoritism to the awardee, by among other things, responding to questions from the awardee after the deadline for questions had passed. The court found the allegations of favoritism “remarkable” given that the agency had initially awarded the contract to the protester and only suspended the award when it discovered the protester had not properly priced all the requirements. In any event, the court noted that while the solicitation had a deadline for questions, nothing prevents an agency from answering a late submitted question. Moreover, the protester had not shown how it was prejudiced by the late question.
Insight Public Sector, Inc. v. United States, COFC No. 21-1755
Background
The Navy issued an RFQ seeking Microsoft licenses, software maintenance and subscriptions. The RFQ contemplated the establishment of a blanket purchase agreement against the GSA Federal Supply Schedule contract for information technology.
Two vendors, Insight Public Sector and Dell Marketing, submitted quotations. The Navy awarded the contract to Insight, finding that Insight’s lower price represented the best value. Following the award, however, Dell raised concerns that Insight had not properly priced some items required by the RFQ because Microsoft itself had changed pricing for these items. After reviewing quotations, the Navy determined that Insight had not properly priced two CLINs, which contributed to the company’s price advantage. The Navy took corrective action, suspending the award to Insight to reevaluate pricing.
As part of the corrective action, Insight and Dell submitted revised pricing. Dell’s price was no lower than Insight’s. The Navy awarded the contract to Dell. Insight filed a protest with the Court of Federal Claims.
Analysis
Review of Dell’s GSA Schedule
The RFQ required each offeror to have a GSA schedule that covered the duration of the BPA contained all the Microsoft products the Navy required. Insight argued the Navy had failed to review Dell’s GSA schedule to confirm that it satisfied these requirements.
But the court found that the RFQ did not require the Navy to inspect GSA’s shedules. Instead, it only required offerors to submit evidence of product inclusion on the GSA schedule. Dell satisfied the requirement by providing representations and documents regarding the product list. The Navy independently verified the information by comparing Dell’s price list to the documentation Dell submitted concerning its GSA schedule.
Still, Insight maintained, there were warning signs in Dell’s quotation that should have prompted the Navy to review the GSA schedule . For instance, Insight complained that Dell did not have all the required products on its GSA schedule, that it lacked a DoD Enterprise Software Initiative BPA, and that Dell had an invalid teaming arrangement. But the court found that none of these alleged warning signs required further investigation by the Navy.
Dell’s Teaming Arrangement
Dell had proposed a teaming arrangement between Dell Marketing and it parent, Dell Federal. Dell Marketing’s FSS contract covered the entire term of the BPA. But Dell Marketing did not possess security clearance required for some of the requirements. Dell Federal’s schedule contract was set to expire before the end of the BPA, but Dell Federal had the required security clearance. Thus, Dell proposed a teaming arrangement between Dell Marketing and Dell Federal, which paired Marketing’s FSS contract with Federal’s security clearance.
Insight contended this teaming arrangement was invalid because Dell Federal was not supplying any products from its GSA schedule. The court found this argument lacked merit. Insight had not cited any authority requiring that each member of the teaming arrangement must supply products from their own schedules.
Insight attempted to claim the teaming arrangement was invalid because as a subcontractor, Dell Federal was not in privity with the government. The court, however, reasoned that Dell Federal was not a subcontractor; it was a teaming partner. Moreover, the government would not have privity with any party under the BPA. Rather, the government would only be in privity once it placed orders under the BPA. Dell Federal would be responsible for fulfilling any of the Navy’s secure order requirements. Thus, once the Navy placed a secure order, it would be in privity with Dell Federal.
Past Performance
Insight objected to the past performance evaluation. First, it claimed that it should have received a higher confidence rating than Dell under the because it had better past performance ratings than Dell. Second, Insight contended that references should have been assessed as “very relevant” rather than “relevant” because their value exceeded $50 million and therefore were more similar to the BPA.
The court found that both of these arguments simply amounted to disagreement with the Navy. As to the confidence rating, Insight had failed to demonstrate the confidence ratings assigned were inconsistent with the evaluation criteria. Just because the Navy assigned both proposals the same rating did not mean the agency had found them to be equal.
With regard to the relevance issue, the court noted that Insight’s argument focused only on the size of its past references without taking into account the scope of those projects.. Without arguing scope, Insight could not establish the Navy irrationally evaluated past performance.
Favoritism
Insight contended the procurement process had been tainted by the Navy showing favoritism to Dell by (1) responding to questions from Dell after the deadline for questions had passed, (2) permitting Dell to to correct a deficiency in its proposal while not engaging in similar discussion with Insight, and (3) accepting a late proposal from Dell.
As an initial matter, the court found Insight’s allegations of favoritism “remarkable” given that the Navy had initially awarded the contract to Insight. As to the merits, the Navy had responded to a question from Dell after the deadline for submission of questions. Nevertheless, the court noted there was no statutory or regulatory provision precluding the Navy from responding to late questions. Even if the Navy had improperly responded to a late question, Insight could not show prejudice. Insight’s initial proposal had deficient pricing. The company had not demonstrated how Insight would have had a substantial chance of receiving award even if the Navy had not responded to Dell’s question.
The court didn’t find the other allegatiosn of favoritism any more compelling. While the Navy had communicted with Dell about an issue with its proposal, that communication was more properly classified as clarifications rather than discussions, because Dell had simply provided additional information that did not amount to a proposal revision. Insight attempted to argue that if Dell’s proposal lacked this information, then Dell had not submitted a timely proposal that compiled with the RFQ’s instructions. The court rejected this argument, noting again that the agency was entitled to seek clarifications from Dell.
Procurement Integrity Act
As noted, after the initial award to Insight, Dell had raised concerns about Insight’s pricing of Microsoft products. Insight contended that Dell must have had inside information about Insight’s proposal. The court had initially found this allegation credible; it had twice remanded the matter to the Navy to investigate the allegations. The Navy had determined there had been no improper disclosure of Insight’s pricing information and no violation of the Procurement Integrity Act. Stil, Insight contended the Navy’s investigation had been inadequate.
The court, however, determined that the Navy’s investigation was sufficient. The Navy had properly staffed the investigation with the contracting officer and Navy counsel. While the Navy did not speak to every person that had access to Insight’s pricing information, it didn’t matter because Dell had provided sworn declarations avowing that none of its employees had access to Inisght’s pricing. Despite Insight’s protestestation, the court found the Navy overall investigation pretty thorough.
Insight is represented by Kyle R. Jefcoat, David R. Hazelton, and Julia A.C. Lippman of Latham & Watkins LLP. The intervenor, Dell, is represented by Craig A. Holman, Amanda J. Sherwood, and Aime JH Joo of Arnold & Porter Kaye Scholer LLP. The government is represented by William P. Rayel, Brian M. Boynton, Patricia M. McCarthy, Martin F. Hockey, Jr. and Douglas K. Mickle of the Department of Justice as well as Tracey Ferguson of the Navy along with Stephen T. O’Neal of the General Services Administration.
