FH+H Successfully Defends Nearly $100M in Contract Awards Before the GAO
***CASE RESULTS DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. INDIVIDUAL CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY FH+H***
In bid protest decisions recently released by the Government Accountability Office (GAO), FH+H attorneys Lee Dougherty and Katherine A. Straw successfully protected several contract awards by intervening on behalf of clients after their awards were protested before the GAO.
In Superlative Technologies, Inc., B-408941 (Dec. 30, 2013), protestor SuprTEK, the incumbent on a contract with the United States Transportation Command (USTRANSCOM), alleged that awardee Phacil, Inc. had materially misrepresented Phacil’s relationship with a key SuprTEK employee, and that USTRANSCOM relied on these representations during the evaluation. SuprTEK further alleged that the technical/staffing evaluation was unreasonable, because it was “virtually impossible” for Phacil to provide staffing with expertise in the electronic transportation acquisition (ETA) application required by the Request for Quotations (RFQ). SuprTEK also challenged Phacil’s past performance, arguing that Phacil’s rating was too high given its lack of experience with ETA services.
The GAO denied the protest, finding that the record did not support SuprTEK’s allegations that Phacil misrepresented that the SuprTEK employee intended to work should Phacil win the contract. The GAO further found no basis to conclude that the evaluators relied on or even considered the allegedly erroneous references to the employee in Phacil’s proposal. It also rejected SuprTEK’s challenge to the technical/staffing evaluation, disagreeing with SuprTEK’s claim that the RFQ required that vendors demonstrate that every member of its staff possess ETA experience. Rather, vendors were only required to identify whether they were proposing any personnel who did in fact have experience with ETA. Finally, the GAO denied the challenge to Phacil’s past performance evaluation, noting that the agency reasonably considered each of Phacil’s references across the four performance areas identified in the RFQ and concluded that it had a high expectation of Phacil’s successful performance.
In TISTA Science & Technology Corporation, Inc., B-408175.4 (Dec. 30, 2013), protestor TISTA alleged that awardee Addx Corporation had an impermissible organizational conflict of interest (OCI) based on the involvement of Addx subcontractor personnel on the predecessor contract, held by Pathfinder Consultants. TISTA claimed that Addx had an unequal access to information OCI, as evidenced by efforts of the former Pathfinder personnel to find a prime contractor teaming partner prior to the release of the RFQ with statements that they knew the VA’s future acquisition plans. TISTA further alleged that these individuals were tied to abuses identified by a VA Inspector General (IG) report on wasteful expenditures related to two human resources conferences in 2011. TISTA argued that Addx should have received lower ratings under both the technical approach/management plan and past performance factors based on the findings in the VAIG report. Finally, TISTA alleged that the VA did not treat TISTA and Addx equally in evaluating past performance, unreasonably crediting Addx’s subcontractor’s minimal past performance while discounting the relevant past performance of TISTA’s subcontractor.
The VA overrode the automatic stay, allowing Addx to perform the contract over the nearly eight months that saw a protest, supplemental protests, size protest, and size appeal all challenging its award. In a decision released shortly before the Small Business Administration (SBA) Office of Hearing and Appeals (OHA) found Addx to be an eligible small business for purposes of this procurement, the GAO denied TISTA’s protest. The GAO found that the VA had conducted a reasonable investigation into potential conflicts of interest prior to awarding the contract to Addx. The VA had concluded that Pathfinder had not been involved in developing the requirement or preparing the “acquisition package” for the RFQ, and thus the Addx subcontractor personnel did not have any knowledge of the acquisition not included in the RFQ itself. The GAO held that the “alleged braggadocio and self-promotion” of the former Pathfinder employees did not constitute the “hard facts” necessary to sustain an OCI claim.
The GAO also denied TISTA’s argument that the VAIG report should have resulted in lower evaluation ratings for Addx, as the evaluators reasonably did not consider the report as adverse information. The GAO noted that neither Pathfinder nor any of its employees were mentioned in the report, and that TISTA had not shown that Pathfinder was involved in the decision-making regarding the unnecessary and unsupported expenditures highlighted by the report. Lastly, the GAO rejected TISTA’s challenge to the past performance evaluation, finding reasonable the agency’s determination that TISTA’s subcontractor’s past performance was not relevant. Given the limited size and scope of that subcontractor’s proposed effort, the VA reasonably did not consider the past performance as it would not impact the performance risk of the overall effort.
In ActioNet, Inc., B-409050.2 (Jan. 22, 2014), protestor ActioNet objected to the Army Corps of Engineers’ decision that awardee Phacil, Inc. represented the best value to the government, despite offering a proposed price approximately $2 million higher than ActioNet. Although ActioNet and Phacil received the same overall adjectival ratings, ActioNet argued that the agency unreasonably assessed it a weakness for failing to demonstrate experience for certain specialized Computer Network Defense Service Provider (CNDSP) functions. ActioNet claimed that the agency engaged in misleading discussions by failing to notify ActioNet that its proposal did not sufficiently explain its experience with computer network defense red teams, malware protection, and technology development and implementation. ActioNet also challenged a significant strength awarded to Phacil for its proposed use of Big Data trend analysis, when such an analysis was not required by the solicitation.
The GAO found the weakness assigned to ActioNet reasonable, noting that the performance work statement (PWS) incorporated by reference two manuals which specify various specialized CNDSP functions for which the contractor must provide support services. Although the PWS may not have required that offerors be able to perform these functions themselves, the GAO concluded that offerors were on notice that they needed to indicate their experience in interacting with those that do and have established processes and procedures to provide such support. The GAO agreed with the agency that ActioNet’s proposal did not adequately describe its experience, and found that the discussions were sufficient to communicate to ActioNet the weakness. The GAO also found that ActioNet was not prejudiced by this alleged error, as it did not indicate that it would have provided competitively useful information in response to more specific discussions.
The GAO also rejected ActioNet’s protest ground regarding Phacil’s significant strength for the use of Big Data trend analysis. The agency argued that Phacil’s offer of such an analysis related to its approach to satisfy four PWS requirements, and thus increased the value of Phacil’s proposal with respect to the technical and management approach subfactor. The agency went so far as to quantify the $2.5 million savings it anticipated it could realize over the life of the contract based on Phacil’s proposed use of Big Data trend analysis. The GAO concluded that ActioNet had not shown that this determination was unreasonable. Finally, the GAO found reasonable the agency’s decision to make award to a higher priced offeror, pointing out that the agency had appropriately looked beyond the adjectival ratings to consider the significance of the companies’ differing technical strengths.