Protest challenging the agency’s evaluation under the technical evaluation factors is denied where the protester’s disagreement with the agency’s judgment provided no basis to sustain its challenge; and protest alleging that the awardee had an unequal access to information OCI is denied, where protester failed to demonstrate that the release of proprietary agency data to the awardee had resulted in the unintentional release of its methodology for meeting the requirement.
Fisher BioServices Inc. protested the Department of Health and Human Services, National Institute of Child Health and Human Development’s award of a contact to Precision Bioservices Inc., challenging the agency’s evaluation of proposals and source selection decision.
The protester challenged multiple aspects of the agency’s evaluation and award decision. First, Fisher challenged each of the 15 weaknesses and 2 significant weaknesses the agency assigned to its technical proposal. Fisher argued that the agency improperly assigned a weakness because it had limited experience with the use of Biological Specimen Inventory for the National Institute of Diabetes and Digestive and Kidney Disease, for whom the services would be performed. According to Fisher, its current failure to use BSI cannot be a weakness, when it proposed to migrate data to BSI as required by the solicitation. Fisher also argued that data migration errors are possible with every offeror, given that the successful offeror will have to migrate the data from Fisher’s current database to BSI, and thus the weakness should not have been assigned only to Fisher.
However, GAO found the agency’s concern was reasonable. The agency explained that its concern was not that Fisher was currently using an inventory system other than BSI, but that Fisher proposed a team and a facility that lack experience in BSI and will have to learn a new system while at the same time undertaking a large-scale data migration. According to the agency, this weakness took into account the fact that the incumbent personnel on the contract are not familiar with the new system, and thus there is an increased risk in the migration of data. The agency also explained that other offerors would not automatically have the same risk. For example, the awardee’s proposal demonstrated significant experience with BSI, and thus presented less risk for data migration errors.
Next, Fisher challenged assignment of numerous strengths to Precision’s proposal. For example, Fisher contends that the agency improperly assigned a significant strength to Precision’s proposal under the biorepository management plan subfactor. The agency found Precision demonstrated knowledge and interest in potential future enhancements to the NIDDK repositories and denoted anticipation of needs for a continuous improved model for biorepository management and procedures.
Fisher argued this strength was unreasonable, because there is no evidence that Precision is capable of using, or even proposing to use, hypothetical advance; that the latest technologies will be sufficiently developed or appropriate for this contract; that use of these technologies would be effective; or that Precision will pay for these technologies. Fisher further argued that this strength lacked a rational connection to the actual work proposed by Precision, and that the agency ignored similar aspects of its proposal demonstrating technological awareness and innovation.
GAO disagreed, finding the agency reasonably credited Precision’s proposal for its knowledge and understanding of future technological improvements, and how those improvements may apply to the contract. Further, Precision’s proposal specifically explained how it has tested certain automation approaches, what it viewed as appropriate for the agency’s repositories and why, and included a detailed plan for storage systems for use in the NIDDK repository in the future. In contrast, Fisher’s proposal provided only a cursory discussion regarding storage systems and future automation possibilities.
Next, Fisher challenges the agency’s evaluation of Precision’s proposal under the personnel evaluation factor. The RFP required the project director to specifically demonstrate extensive successful experience in directing a facility that stores more than 400,000 biosamples, genetic samples, or cell lines. The RFP also stated that the project director “should” have “5 or more years’ successful experience directing a facility that provides biosample archiving and genetics services to a large and diverse group of investigators.
Fisher alleged that the awardee’s project director’s resume did not demonstrate that he met either of those requirements, and yet Precision’s proposal was neither found unacceptable nor assigned a weakness. However, GAO disagreed, noting that the agency found that Precision’s project director had three years’ experience overseeing biorepositories averaging between 500,000 and 2 million samples, and that he had directly managed a biorepository team that serviced a 4 million sample collection from 70 study collections. While Fisher may disagree as to whether this constitutes “extensive” experience, GAO found the agency reasonably concluded it was sufficient. Further, Precision’s proposal stated that the project director had nearly a 20-year history in directly managing all laboratory and biorepository activities and over a 10-year history of directly managing biorepositories.
Finally, Fisher alleged that there is an unequal access to information organizational conflict of interest. According to Fisher, the government—after the initial award of the contract to Precision—directed Fisher to provide certain data pertaining to the location of samples in its repository to the incumbent contractor for the data repository, which then provided the data to Precision as part of the transition to a new contractor. As a result, when Fisher filed its earlier protest, which led to corrective action by the agency, Precision had access to Fisher’s data during the subsequent corrective action competition. Fisher did not contend that the data itself was proprietary, but that the data revealed Fisher’s proprietary methodology for storing and organizing the samples, and that the disclosure of this methodology gives rise to an OCI.
In response, the agency explained that it conducted an investigation to determine whether Precision had access to competitively useful information, including Fisher’s proprietary information. The agency explained that it was never advised by the protester that this data was proprietary or confidential, and that this information was submitted in accordance with the protester’s incumbent contract, which contained a clause stating that data under that contract was the property of the agency.
Although Fisher argued Precision could derive its proprietary methodology from the release of this information, GAO found the protester failed to provide any explanation for how its methodology is evident from the face of the data. Further, Fisher failed to notify any party that it viewed this information as proprietary. Finally, the protester did not dispute that the data was owned by the agency.
Fisher BioServices Inc. is represented by Stephen E. Ruscus, Donna Lee Yesner, Suzanne E. Bassett, and Katelyn M. Hilferty of Morgan, Lewis & Bockius LLP. Precision Bioservices Inc. is represented by Keith R. Szeliga, Matthew W. Turetzky, Adam Bartolanzo, and Ariel Debin of Sheppard Mullin Richter & Hampton LLP. The government is represented by Brian C. Caney and Anthony E. Marrone, Department of Health and Human Services. GAO attorneys Peter D. Verchinski and Amy B. Pereira participated in the preparation of the decision.
