Source selection decisions are often a point of contention for federal government contractors, and rightfully so. Contractors spend large amounts of time and resources putting together a bid in a competition that likely doesn’t have room to make an award to each bidder. This usually results in one or more awardees, as well as one or more disappointed bidders. Naturally, those disappointed bidders often question whether the agency’s source selection decision, and its method for getting there, was appropriate. Unfortunately, the only way of truly discerning whether that decision was correct is to spend more time and resources protesting the decision. With a 51% effectiveness rate in 2022 (counting sustains and corrective actions), according to GAO’s annual bid protest report, it can be difficult to determine whether to even go forward with a protest when things don’t seem to add up. But, as a recent protest demonstrates, agencies make mistakes, and in this case, the fatal flaw was failure to adequately document its decision.
The decision in RemedyBiz, Inc. centered on a Department of Education (DOE) request for quotations (RFQ) to establish a blanket purchase agreement (BPA) with a vendor. RemedyBiz, Inc., B- 421196, 2023 CPD ¶ 29 (Comp. Gen. Jan. 17, 2023). DOE planned to issue task orders to the awardee for the implementation of a new acquisition management system. The RFQ stated DOE would evaluate the offers in three separate phases. First, DOE would evaluate offerors using only their prior experience for Phase 1. Second, offerors would give oral presentations, with at least three of its key personnel presenting. DOE would also review the key personnel’s resumes as part of Phase 2. Phase 3 would evaluate offerors’ quotations under the technical and price factors. DOE planned to evaluate all non-price factors “holistically,” assigning a rating of “high confidence,” “some confidence,” or “low confidence” to each non-price factor. Offerors’ price proposals were evaluated regarding the fairness and reasonableness of their labor categories, labor rates, and total evaluated price for the first task order (Task Order 1) under the BPA.
Three vendors made it through to the final round of evaluations: RemedyBiz, Inc. (Protester), Centennial Technologies, Inc. (Awardee), and one additional offeror. RemedyBiz received a rating of “some confidence” for its prior experience, oral presentation, and key personnel, and received a rating of “high confidence” for its technical proposal. RemedyBiz’s total evaluated price for Task Order 1 was $19,761,453. Centennial was assigned a rating of “high confidence” on all four of its non-price factors, and its total evaluated price for Task Order 1 was $18,631,479. The contracting officer made the award to Centennial based on the fact that it was assigned a “high confidence” for all non-price factors, and because it had a lower price for Task Order 1, stating that the situation did not warrant a best value tradeoff analysis.
Following award to Centennial, RemedyBiz protested DOE’s award and evaluation of the non-price factors in both its own proposal as well as Centennial’s. GAO reviewed the record and determined that three out of the four non-price factors, oral presentation, key personnel, and technical evaluations were reasonable, consistent with the terms of the RFQ and applicable regulations, and supported by the record. However, GAO found the prior experience factor was not supported by the record.
Prior Experience Factor
Now, I’m not going to pretend I am well-versed in the ins and outs of “Capability Maturity Model Integration (CMMI) development level 3,” and, for our purpose, it is not necessarily important to know either. What is important is that the RFQ required offerors to submit three examples of recent and relevant work, with the requirement that one example “must be related to end-to-end federal Acquisition Management System [AMS] implementation.” When GAO looked into the documentation of DOE’s decision, it found RemedyBiz and Centennial both met the prior experience requirements of the RFQ, but received different outcomes. Both submitted three examples of recent and relevant work with a contract value over $5 million, and one of those examples was relevant work that was related to end-to-end AMS implementation. Both RemedyBiz and Centennial were CMMI development level 3 certified, and both submitted information on implementation methodology and hybrid implementation. The remainder of DOE’s source selection documentation relevant to the prior experience factor stated:
For the NIH [National Institutes of Health] contract referenced, as per the “Contract Effort Description,” the project is for the O & M [operations and maintenance] of various systems that includes ITSM [Information Technology Service Management], etc. In CY [calendar year] 21 and CY22, RemedyBiz did PRISM upgrade, but not new implementation mentioned.
That’s it. There was nothing more in the record to support the source selection decision, and, as protester pointed out, on paper, the evaluation of the individual prior performance criteria were the exact same. Yet, RemedyBiz was assigned “some confidence” for its overall rating of prior experience, while Centennial was assigned “high confidence.”
When RemedyBiz pointed out the unsupported discrepancy in its protest, DOE claimed that RemedyBiz only provided one example of end-to-end federal AMS implementation, while Centennial offered multiple. GAO determined that even if this was true, there was no documentation showing DOE’s consideration of Centennial’s examples. It often feels like GAO will uphold agency decisions based on a seemingly far-fetched notion, or with a very small amount of documentation. In fact, GAO will even take into consideration previously unrecorded details if they are consistent with source selection documentation. However, in this case, DOE’s post-protest explanation was not consistent with the contemporaneous documentation of the agency’s decision, and GAO sustained the protest on this basis.
Additional Protest Grounds
Remember the three non-price factors that were found to be fair and reasonable? Well, even though those grounds for protest did not result in a sustain, there still is much to learn from them.
First, the RFQ called for an oral presentation from each vendor in Phase 2. The presentation was limited to teams of five employees, three of whom were key personnel. The RFQ also stated key personnel “must be employees” of the offeror or the offeror must submit a contingent offer letter. During its oral presentation, the only key personnel of RemedyBiz that contributed to the conversation was its program manager. RemedyBiz had one additional executive that contributed, but that executive would not be part of the RemedyBiz delivery team. Additionally, RemedyBiz’s development lead—also considered key personnel—was not an employee, but rather was committed via a contingent offer.
RemedyBiz protested its ratings of “some confidence” on oral presentation and key personnel, claiming that DOE’s “lower[ed] expectation of success” based on these two factors, was an application of unstated evaluation criteria. However, GAO sided with the agency on both factors. RemedyBiz’s lowered rating for oral presentation was deemed to be fair and reasonable, stating that “the purpose of the oral presentations was for the agency to ‘understand’ vendors’ technical and management approaches for implementing the AMS ‘directly from the vendor.” GAO reasoned that the rating of “some confidence” based on the contingent offer for the program manager was also fair and reasonable, stating that there is no reason in the RFQ that the “availability of key personnel cannot reasonably be considered as part of the evaluation of the key personnel factor.” Essentially, the RFQ didn’t prohibit the source selection authority from assigning a lower rating for contingent offers than it would assign for key personnel who are already employees of the offeror, despite the fact that contingent offers were expressly permitted. Sounds a bit like conversations with my own kids when they do something they aren’t supposed to, “but you didn’t say I couldn’t do that.”
RemedyBiz also protested of the technical evaluation factor, asserting that DOE “unreasonably criticized [its] approach to license management as ‘very generic’ and unjustifiably questioned” the effectiveness of RemedyBiz’s offer. However, because RemedyBiz had already received the highest rating possible for the technical factor, it was not prejudiced by this decision and, therefore, GAO denied the protest of this factor.
RemedyBiz’s protest was sustained because DOE’s evaluation of prior experience was not supported by the record. Remember, even though GAO upheld DOE’s decisions for oral presentation, key personnel, and technical factors, it often only takes one wrongdoing to result in a sustained protest. As such, GAO recommended that DOE reevaluate the proposals with adequate documentation and establish a new BPA and task order if Centennial is not found to be the best value.
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