Pre and Post Award Bid Protest

GAO Supports VA's Pick For $1B IT Despite Higher Bid Price

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In a decision released on October 10, 2019, the U.S. Government Accountability Office (the “GAO”)announced that the Department of Veterans Affairs (VA) reasonably awarded a $1 billion information technology (IT) contract to Booz Allen Hamilton (BAH) despite BAH submitting a significantly higher bid in comparison to competing bidders.

VA Solicitation

The VA issued a solicitation for a request for task execution plan (RTEP) on September 6, 2018. The RTEP was structured as a hybrid fixed-price and time-and-materials (T&M ) task order and competed under the fair opportunity provisions of Federal Acquisition Regulation (FAR) § 16.505(b)(1) among the 28 holders of the VA’s multiple-award indefinite-delivery, indefinite-quantity (IDIQ) Transformation Twenty-One Total Technology Next Generation (T4NG) contract. The RTEP period of performance consisted of a 12-month base period, four 12-month option periods, and an optional 60-day transition support period.

The RTEP provided for issuance of a task order to the offeror whose proposal was determined to be the most beneficial to the agency, considering the three evaluation factors of technical, past performance, and price/cost. The technical factor was significantly more important than the past performance factor, which was slightly more important than the price factor.

Bid Protest

The VA received seven timely proposals by the September 21, 2018 deadline, and ultimately awarded the contract to BAH on October 26, 2018. Cognosante MVH, LLC (Cognosante) filed a protest with the GAO on November 13, 2018, alleging that the VA failed to evaluate final prices for reasonableness, improperly awarded BAH’s proposal a strength under the technical factor, evaluated technical proposals disparately, and failed to evaluate the fixed-price portion of BAH’s proposal for technical risk.

The GAO sustained the protest, finding that a strength assigned to BAH’s proposal did not reasonably relate to the elements described in the solicitation, that the agency conducted an unequal evaluation by evaluating proposals using differing levels of scrutiny, and that the VA did not evaluate prices for reasonableness. After reviewing the GAO’s decision, the VA “re-evaluated final technical proposals, pulled new past performance scores to reflect the current quarter, conducted a new fair and reasonable price determination, and arrived at a new award decision.”

VA's Evaluation

In the VA’s technical reevaluation, none of the proposals received any weaknesses, significant weaknesses, or deficiencies. The VA did not credit BAH’s proposal with the strength that the GAO identified as not reasonably relating to the solicitation elements. As part of the agency’s reevaluation, every offeror’s proposal except SRA International, Inc.’s (SRA) was assigned an additional strength. In reevaluating BAH’s proposal under the technical factor, the VA identified one significant strength and four strengths.

As it did before, VA awarded BAH’s proposal a significant strength for exceeding the RTEP’s requirements for information security configuration management support. The agency defined a "strength” as “[a]ny aspect of a [proposal] when judged against a stated evaluation criterion, which enhances the merit of the [proposal] or increases the probability of successful performance of the contract. A significant strength appreciably enhances the merit of a [proposal] or appreciably increases the probability of successful contract performance.”

The VA then recalculated past performance scores and conducted a price reasonableness evaluation, and again determined that BAH’s proposal offered the best value to the VA and awarded the contract to BAH for a second time on May 14, 2019. Accenture Federal Services LLC (Accenture), Cognosante, and SRA together challenged multiple aspects of the agency’s evaluation.

GAO Conclusion

In its September 4, 2019 report, the GAO concluded that the VA did not unfairly mark the technical proposals of Accenture, Cognosante, or SRA compared to how it marked BAH, nor did the agency fail to consider differences in the bidders’ performance on previous contracts. The GAO explained that given technical performance was the VA’s most important factor for choosing a contractor, the agency made a reasonable decision to select BAH’s nearly $1 billion bid despite being $140 million over the next most expensive bid.

“To the extent that the protesters are suggesting that the VA could not reasonably have considered the advantages identified to be worth the price premium in question, their complaints constitute disagreement with the VA’s judgment, which is not sufficient to demonstrate that the tradeoff was unsupported,” the GAO said.

Accenture, Cognosante and SRA all protested, arguing that their proposals should have been assessed with additional formal strengths, with Accenture and Cognosante also claiming they were disparately treated compared to BAH. In response, the GAO determined that there was no indication that the VA unreasonably denied formal strength ratings to the protesting bidders, or that they were treated differently from BAH.

Furthermore, the VA’s price reasonableness determination was allowed under the FAR, according to the GAO. The agency found that BAH’s price, although “markedly higher” than the other bidders, was within a “reasonable range,” using various metrics such as being within 14 percent of the independent government cost estimate of $876.5 million.

In denying the protest, the GAO concluded that “[w]hile the protesters disagree with the agency’s conclusion, [the GAO] find[s] that the VA’s best-value determination was reasonable and consistent with the evaluation criteria.” Thus, BAH was properly awarded the information technology contract by the VA.

If you are a government contractor and have questions about the fairness of a bid protest, the attorneys at  Whitcomb, Selinsky Law PC, are experienced in all aspects of government contracting. Please call (303) 534-1958 or complete an online contact form.

About the AuthorWhitcomb, Selinsky, PC Staff

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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