The protesters challenged the past performance evaluation. They contended the agency erred in finding one of the awardee’s references relevant. They also argued the agency unreasonably assessed a high confidence rating to the awardee’s past performance. GAO rejected the arguments as mere disagreement. The protesters had a different opinion than the agency about the complexity and quality of the awardee’s past contracts. But disagreeing with the agency is not enough to sustain a protest.
SeaTech Security Solutions; Apogee Group, LLC, GAO B-419969.6, B-419969.7
Background
The Department of Homeland Security (DHS) issued an RFP seeking radiation portal monitors—i.e., electronic sensors that detect radioactive material. Five offerors, including SeaTech Security Solutions, Apogee Group, LLC, and K2 Construction, submitted proposals. DHS awarded the contract to K2. SeaTech and Apogee protested.
Analysis
Past Performance
SeaTech and Apogee contended one of K2’s past performance references was less complex than DHS’s requirement. Accordingly, the protesters argued, DHS should not have found the reference relevant.
GAO didn’t find their argument persuasive. The RFP stated past projects only needed to be similar, not identical to the requirement. While K2’s reference was not as complex, DHS had reasonably found the reference relevant based on its similar size and scope. GAO found the protesters’ argument amounted to mere disagreement with DHS’s evaluation conclusions.
SeaTech and Apogee also argued their past performance was superior to K2’s. Thus, SeaTech, Apogee, and K2 should not have all received the same high confidence past performance rating. Again, GAO found this argument nothing more than disagreement.
SeaTech’s Organizational Structure
DHS assessed a negative to SeaTech’s organizational diagram. DHS thought the diagram didn’t efficiently distribute work. DHS raised the issue during discussions. In response, SeaTech provided a narrative explaining it organizational structure. But the narrative did not alleviate DHS’s concerns. The negative rating remained.
SeaTech argued its narrative should have alleviated DHS’s concerns. GAO found this argument simply disagreed with DHS’s assessment of the narrative.
SeaTech also reasoned DHS’s discussions letter had given the company a choice: justify the organizational structure or revise it. SeaTech elected to justify the structure. If DHS really wanted the company to revise the structure, then DHS conducted misleading discussions. GAO rejected the argument. The discussions were not misleading; rather, DHS had simply found SeaTech’s justification inadequate.
Apogee’s Organizational Structure
DHS also assessed negative findings to Apogee’s organizational structure. DHS raised its concerns in discussions with Apogee. Apogee felt it had addressed those concerns, but that DHS had unreasonably continued to find fault with its structure.
GAO found DHS had erred forgetting to remove a negative from Apogee’s revised proposal. Nevertheless, Apogee had not been prejudiced by the error. Even if DHS had removed the negative, Apogee’s proposal still had another negative. K2, on the other hand, had no negatives. Apogee could not show it had a reasonable chance at award.
SeaTech is represented by Antonio R. Franco, Katherine B. Burrows, Jacqueline K. Unger, Kevin T. Barnett, and Daniel J. Figuenick III of PilieroMazzza, PLLC. Apogee is represented by Nicole D. Pottroff, Shane J. McCall, John L. Holtz, Stephanie L. Ellis, and Gregory P. Weber of Koprince McCall Pottroff LLC. The intervenor, K2, is represented by Robert K. Tompkins, Gregory H. Kroger, Kelsey M. Hayes, Richard Ariel, and Sean R. Belanger of Holland & Knight LLP. The agency is represented by Eric M. Steinberg and Brian C. Habib of the Department of Homeland Security. GAO attorneys Heather Self and Peter H. Tran participated in the decision.
–Case summary by Craig LaChance, Senior Editor
