The solicitation required offerors to respond to a sample task. As part of their response, offerors had to identify “stakeholders.” The agency penalized the protester for not identifying specific stakeholders. The protester contended it had identified stakeholders. GAO sided with the agency. The protester had only identified broad categories of stakeholders, like “users” or the “Navy.” The solicitation, however, required offerors to identify specific agency personnel, like the agency’s system security officer.
FreeAlliance.com, LLC, GAO B-420345.3, B-420345.4
The Navy issued a solicitation to holders of the SeaPort Next Generation IDIQ contract. The solicitation sought cybersecurity services. Eighteen offerors, including FreAlliance.com, LLC and Resource Management Concepts (RMC), submitted proposal. The Navy awarded the contract to RMC. FreeAlliance protested.
The solicitation required offerors to respond to three sample tasks. The Navy had assigned two negative findings to FreeAlliance’s response to one of the tasks involving Computer Network Defense. The Navy assessed the first negative finding because FreeAlliance had not explained how it would utilize identified tools or data. FreeAlliance argued its proposal had described the tools and how they would be employed. GAO sided with the agency. FreeAlliance had proposed the use of certain tools, but had not discussed how it planned to actually use those tools.
The Navy assessed FreeAlliance a second negative finding for not describing any specific agency personnel—like the system security manager or information system security officer—as stakeholders. FreeAlliance maintained the solicitation did not require offerors to identify specific agency personnel as stakeholders. Moreover, FreeAlliance believed it had satisfied this requirement by identifying stakeholders.
GAO rejected FreeAlliance’s argument. The sample task asked offeror to “describe the stakeholders that you would use to address this incident.” GAO reasoned that used in this context, “stakeholders” referred to specific agency personnel. The only stakeholders FreeAlliance had identified were large, general categories of personnel, like “users” or the “Navy.” These putative “stakeholders” were too broad to satisfy the stakeholder requirement.
FreeAlliance contended it should have received additional positive findings for its “robust corporate experience.” GAO didn’t agree. The solicitation did not contemplate an evaluation of corporate experience. What’s more, FreeAlliance had not explained how its experience would benefit the Navy.
FreeAlliance also asserted it should have received a strength for using incumbent staff. But the solicitation did not state that use of incumbent staff would be evaluated favorably. While FreeAlliance had provided commitment letters from incumbent staff, the agency reasonably found that those commitments didn’t yield any benefit. Incumbent staff often sigh commitment letters with multiple offerors. The letters didn’t prevent incumbent staff from seeking employment elsewhere.
Bait and Switch
FreeAlliance contended RMC tried to pull a bait and switch by proposing staff it did not intend to use. As evidence, FreeAlliance noted that RMC had proposed to staff the contract with non-incumbent personnel but later tried to recruit incumbent personnel.
GAO didn’t believe this amounted to bait and switch. To prove a bait and switch, a protester must show the awardee knowingly or negligently proposed staff it did not reasonably expect to furnish. The record here did not show that RMC’s proposed staff were unavailable or that RMC never intended to use them. There is nothing unusual or improper about an awardee attempting to recruit staff previously employed by the incumbent contractor.
FreeAlliance argued that RMC’s labor rates were too low to recruit and retain incumbent staff. Thus, FreeAlliance, reasoned, the Navy must have unreasonably evaluated RMC’s compensation plan. GAO didn’t see it. The record showed the Navy compared RMC’s proposed labor rates to incumbent rates. While RMC’s rates were lower, the Navy reasonably found them realistic based on the payroll verification. Moreover, the Navy had also compared RMC’s fringe benefits to the incumbent’s fringe benefits and determined RMC’s benefits were similar.
FreeAlliance is represented by W. Brad English, Jon D. Levin, Emily J. Chancey, Nicholas P. Greer, and Mary Ann Hanke of Maynard Cooper & Gale PC. The intervenor, RMC, is represented by Edward J. Tolchin of Offit Kurman. The agency is represented by Cristina L. Costa and Morgan E. Gierhart of the Navy. GAO attorneys Todd C. Culliton and Tania Calhoun participated in the decision.
–Case summary by Craig LaChance, Senior Editor