Protest alleging that agency applied unstated criteria and disparately evaluated proposals is sustained. GAO reasoned that not only did the agency apply unstated criteria, but the agency somehow found the awardee had satisfied the supposed criteria by misconstruing information in the awardee’s quotation. GAO also found the agency disparately evaluated proposals by (1) assigning a weakness to the protester that should have also been assigned to the awardee, and (2) assigning a significant strength to the awardee for a staff retention rate the awardee didn’t promise but that the protester did.
The FBI issued an RFQ seeking administrative and analysis support services for the National Name Check Program. Essentially, the contractor would help the FBI perform background investigations for current and prospective government employees.
Several vendors submitted quotations. The FBI established a competitive range with the proposals from PAE National Security Solutions, LLC and Celerety Government Solutions, LLC d/b/a Xcelerate Solutions. The FBI awarded the contract to Xcelerate, finding that the company had a higher-rated proposal. PAE protested.
PAE alleged the FBI applied unstated criteria. The FBI assessed a strength to Xcelerate for its experience performing continuous vetting—i.e., ongoing review of individuals who have already received a security clearance. PAE argued that the RFQ did not contemplate evaluation of continuous vetting.
GAO agreed with PAE. The RFQ made no mention of experience performing continuous vetting. To make matters worse, the FBI had noted in its evaluation of Xcelerate that the company’s continuous vetting solution fit into the agency’s five-year business plan. GAO also noted that nothing in the RFQ mentioned a five-year business plan or any possible requirement for continuous vetting as part of that plan.
PAE also contended that the FBI had applied unstated criteria when evaluating Xcelerate’s proposed program manager. The FBI had assigned Xcelerate a strength for its program managers experience in transitioning contracts for the FBI. PAE reasoned that experience transitioning contracts for the FBI was not identified as a consideration under the key personnel subfactor.
Again, GAO agreed with PAE. The key personnel subfactor made no mention of experience transitioning contracts for the FBI. What’s more, even if this experience had been a criterion, it was not clear that Xcelerate’s program manager satisfied it. The RFQ limited the review of key personnel to information included on the resumes. Nothing on the program manager’s resume referred to experience transitioning contracts. Xcelerate’s quotation included a text box that referred to transitioning contracts, but that text box, provided no information about the program manager’s ability to transfer a labor-hours contract to a fixed-price contract or really any information about the types of contracts the program manager had transitioned
Next, PAE contended that the FBI disparately evaluated quotations. PAE alleged that the FBI assigned a weakness to its quotation for not describing the expected size of its proposed staff. But, PAE argued, the FBI did not assign a weakness to Xcelerate for similar opacity with respect to proposed staff. GAO found that the FBI had unequally evaluated quotations. Xcelerate did not commit to a definite staff size. To the extent the agency had a concern with PAE’s proposed staff, it should have had the same concern with Xcelerate.
Finally, PAE argued the FBI disparately evaluated proposals with regard to retention rates. The agency gave Xcelerate a significant strength for a retention rate it never offered while only assigning PAE a strengths for a clear, defined retention rate.
GAO once again determined that the FBI had erred. The evaluators thought Xcelerate would achieve a high rate of retention, but there was no commitment from Xcelerate to actually achieve that rates. Xcelerate had merely claimed success at achieving a similar rate on other contracts. PAE offered definite rates over the life of the contract. The agency treated the firms unequally in evaluating their rates.
PAE is represented by Anuj Vohra, James G. Peyster, Michael E. Samuels, William B. O’Reilly, and Karla V. Perez Chacon of Crowell & Moring LLP. The intervenor, Xcelerate, is represented by Jonathan T. Williams, Katherine B. Burrows, Samuel S. Finnerty, and Christine C. Fries of PilieroMazza PLLC. The agency is represented by Michael Giordano of the Department of Justice. GAO attorneys Scott H. Riback and Tania Calhoun participated in the preparation of the decision.
