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Pre and Post Award Bid Protest

Business Integra Solutions Protests Task Order by Department of State

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Business Integra Technology Solutions, Inc. (BI) protested the Department of State’s (DOS) issuance of a task order to Soft Tech Consulting, Inc. It protested aspects of the agency’s evaluation and source selection process. The Government Accountability Office (GAO) sustained the protest.

Background

In August 2019, the State Department issued a request for quotations (RFQ) for a task order to provide IT support services for DOS’ Bureau of Diplomatic Security (DS) during a 30-day transition period, a 1-year base period, and four 1-year option periods. The contractor was required to “install, maintain, support, upgrade and monitor” IT agency systems and “train system users.” The contractor was to be selected based on a best-value tradeoff. The factors include the following in descending order of importance: technical approach, personnel qualifications, past performance, and price.

Two of the proposals were submitted by Soft Tech and BI.  In December 2019, the agency selected Soft Tech for the award. BI subsequently protested the agency’s evaluation and source selection decision. Its protests included the State Department’s evaluation of Soft Tech’s past performance evaluation with their statement that Soft Tech did not have past performance that qualified as relevant under the terms of the solicitation.

In January 2020, the State Department notified the GAO it was taking corrective action by reconsidering the “strengths, weaknesses, and evaluation findings” along with a “new cost-technical trade-off analysis and new source selection award determination.” The GAO subsequently dismissed BI’s protest as academic. A reevaluation of BI and Soft Tech’s quotations was reevaluated, and Soft Tech was again selected for the award. The State Department notified BI that its quotation contained five strengths and four weaknesses under the technical approach. The agency found BI’s activities were being performed under BI’s incumbent contract and were “not innovative.” In March 2020, BI protested the award again. It stated Soft Tech did not have relevant past performance and challenged the agency’s assessment of its “innovations.” The agency selected Soft Tech once more after making “limited” corrective actions.

Past Performance

BI asserted the agency’s evaluation of Soft Tech’s past performance was unreasonable due to its failure to consider the dollar value of Soft Tech’s prior contracts. BI noted the past performance ratings were based on “relevant” prior contracts, which were defined as contracts “similar to the competed task order with regard to the type of work, dollar value, and scope.” The State Department acknowledged a $1 million threshold was established by the technical evaluation team (TET) as a “reasonable minimum for IT services contracts.” 

Innovative Weakness

BI protested the agency unreasonably assessed a weakness in its quotation under the technical approach factor. The State Department concluded BI’s quotation was not innovative as it had claimed, but BI noted the solicitation did not require innovations. BI argued that assigning a weakness to its quotation was not consistent with the terms of its solicitation. It noted the quotation defined weakness as a “flaw” and suggested the agency improperly assigned the weakness to offset strength in a different portion of the quotation.

The GAO stated it does not reevaluate proposals. It instead reviews the record to determine whether the agency’s evaluation was “reasonable, consistent with the solicitation’s evaluation criteria, and adequately documented.” The GAO noted the solicitation did not indicate a failure to propose innovations would constitute a flaw in the quotation. It found the agency’s assignment of a weakness unreasonable.

Source Selection Decision

BI asserted the contracting officer’s decision reflected the TET’s earlier evaluation despite the officer’s assertion that her final source selection decision was based on TET’s reevaluation of quotations. The contracting officer stated she “erroneously included” the statement in her source selection decision. She asserted the statement “did not impact my trade-off analysis in a meaningful way.” She added her award determination would be the same had it not been included.

The GAO rejected the contracting officer’s post-protest representations. It did not give any “significant weight” to the contracting officer’s declaration that the error did not affect the source selection decision in a “meaningful way. The GAO concluded the agency’s justification for choosing Soft Tech’s higher-price quotation was partly based on erroneous support.

Best-Value Tradeoff

BI argued the State Department failed to comply with solicitation provisions regarding price evaluation when it determined Soft Tech’s higher-priced quotation was the best value to the agency. BI noted the vendor’s evaluated price was to be “based on an analysis of the overall price and components of the overall price.” It found the contracting officer’s best-value tradeoff was based on Soft Tech’s price without Defense Base Act (DBA) insurance. The award documented stated, “DBA was not included in the trade-off analysis.”

The State Department asserted the price without DBA insurance was appropriate “because DBA insurance is a not-to-exceed cost-reimbursable CLIN based on actual costs.” The GAO noted the agency did not offer an explanation why other “not-to-exceed” items were treated the same way. The GAO found the record unambiguous as to why the best-value tradeoff was not based on the vendors’ total prices.

Conclusion

The GAO recommended the State Department reevaluate and document its review of the competing quotations and make a best-value determination reasonable and consistent with terms of the solicitation. For more information on protesting an award decision, contact Whitcomb Selinsky PC.

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About the AuthorWhitcomb, Selinsky, PC

Whitcomb, Selinsky, PC is a full service law firm serving clients’ diverse legal needs. Our focus is in helping people in their interactions with federal, state and local governments.

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