Protesters’ Mere “Assumptions, Inferences, and Speculation” About Awardee’s Compliance with Subcontracting Limitations Not Enough to Sustain Protest; Blueprint Consulting Services, LLC, d/b/a Excelicon, Trillion ERP Venture Tech LLC, GAO B-420190 et al.

Protests alleging an impaired objectively OCI and challenging the agency’s evaluation are denied. The protester alleged one of the awardee’s subcontractors had an impaired objectivity OCI due to its work on another contract. GAO found that the subcontractor was not in position on the previous contract to manipulate work on the new contract. The protesters also alleged the awardee would violate the limitations on subcontracting. But GAO found that this argument was based on conjecture, which is not enough to sustain a protest.

Background

The Federal Emergency Management Agency issued an RFQ seeking information technology services. The RFQ was issued to holders of the FSS contract for IT services and was set aside for small businesses.

FEMA received proposals from nine offerors, including Blueprint Consulting Services, d/b/a Excelicon, Trillion ERP Venture Tech, and Appddiction Studio, LLC. FEMA awarded the contract to Appddiction. Excelicon and Trillion protested.

Legal Analysis

• No Imparied Objectivity OCI – Excelicon and Trillion alleged that Appdication had an impaired objecting arising from the work of a subcontractor on another contract. The protesters alleged that this subcontractor was working on a cloud management contract, which put them in the position of recommending the work that would be migrated to the cloud. Under this contract, the subcontractor would be responsible for migrating that work to the cloud. Thus, the protesters alleged, the subcontractor’s work on the both contracts could be undermined by its competing interests. GAO however, saw no conflict. The subcontractor was not in position to manipulate workflow or recommend work on the new contract. Moreover, even if the subcontractor had been in a position to recommend work, it had been before it knew Appddiction would be awarded the contract in this case.
• Awardee Was Not Over-Reliant on Subcontractors – Excelicon and Trillion complained that Appddiction had no previous experience with contracts of this size and scope and thus would be over reliant on subcontractors. But GAO noted that the RFQ contemplated that vendors could propose major subcontractors and the agency would consider their experience.
• Evaluation Record Was Sufficiently Documented – The protestera alleged that FEMA failed to document the content of oral presentation, and that GAO should sustain because the record lacked an adequate basis. GAO noted the procurement was administered under FAR subpart 8.4, which does not require extensive documentation of oral presentation. GAO found that while the record was sparse, the oral presentation was sufficiently documented.
• Price Reasonableness Objection Was Really a Price Realism Argument – Trillion alleged FEMA had not assessed the reasonableness of Appdication’s proposed resources and whether it could perform the work with its proposed labor categories and rates. GAO found that this was really an argument that FEMA failed to perform a price realism analysis. But the RFQ did not provide for price realism analysis.
• No Evidence that Awardee Would Not Comply with Limitations on Subcontracting – FAR 52.219-14, which applied to the solicitation, provides that at least 50 percent of the contract had to be performed by the prime. The protesters contended Appddiction could not satisfy this requirement. GAO reasoned that in the absence of contradictory language in a proposal, an agency may presume that a vendor will comply with limitations on subcontracting. Here, there was nothing in Appdiction’s proposals that indicated it would not comply with the limitations. The protester’s mere assumptions, inferences, and speculation were insufficient to demonstrate noncompliance.

Excelion is represented by Daniel Strouse, John J. O’Brien, Jason May, and Laurel Hockey of Cordatis LLP. Trillion is represented by William A. Shook of the Law Offices of William A. Shook. The intervenor, Appddiction, is represented by Jeffrey M. Chiow, Lisa N. HImes, and Stephen L. Bacon of Rogers Joseph O’Donnell, PC. The agency is represented by Ervin N. Harris of the Department of Homeland Security. GAO attorneys Kasia Dourney and Evan C. Williams participated in the preparation of the decision.