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Pre and Post Award Bid Protest

Peraton Protests Scope of Department of State's Corrective Action

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Peraton, Inc. protested the scope of the Department of State’s (DOS) corrective action following the last protest of a task order to ManTech Advanced Systems International, Inc. The task order was issued through the National Institute of Health for an acquisition contract for server and software deployment services. In August 2020, the Government Accountability Office (GA0) found the DOS’ corrective action unreasonably limited in scope. As a result, the GAO sustained Peraton’s protest.

Background

The request for proposal (RFP) was issued in January 2018. The RFP issued a task order with fixed-price and time-and-materials contract line items. The RFP indicated the award would be made based on a best-value tradeoff between three evaluation factors: technical, past performance, and price. The technical factor consisted of technical approach, management approach, staffing plan and key personnel, and corporate experience. The staffing plan and key personnel subfactors were evaluated for “the extent to which the offeror’s proposed staffing plan, to include key personnel and alignment of hours per labor category, reflects an understanding of the Government’s requirement and aligns with the offeror’s technical approach.”

In September 2018, the DOS issued a task order under the solicitation to Vistronix, LLC. Peraton protested the award with the GAO. It alleged that Vistronix had “unmitigated organizational conflicts of interest (OCIs). The protest led to an investigation by the DOS that led to the conclusion that Visitronix “had an unmitigable OCI.” Vistronix filed a protest on the OCI determination, but it was dismissed as untimely.

The task order was then issued to ManTech in September 2019. Peraton subsequently filed a protest. In December 2019, the DOS filed a notice that it would take corrective action. GAO dismissed Peraton’s protest as academic due to the DOS’ corrective action. In April 2020, Peraton stated it replaced key personnel and requested offerors be allowed to “substitute key personnel and submit new commitment letters and resumes without rejecting the proposal as technically unacceptable.” The DOS granted permission to substitute key personnel, but GAO stated it was not required to do so.

Analysis

Peraton argued that DOS’ decision to limit proposal revisions to key personnel resumes, letters of commitment, and staffing plan column “unreasonably narrow.” It noted that its staffing plan submission included information on its key personnel, which the latest corrective action would prevent it from revising. It asserted that its new staff might have different levels of experience and labor rates, affecting its pricing. By refusing to amend its proposal, Peraton argued the DOS forced it to submit a proposal that was inconsistent on its face and would not comply with the requirement that “key personnel and staffing be aligned with an offeror’s technical approach.” The GAO noted that Peraton’s argument was based on the decision in Deloitte Consulting, LLP, B-412125.6, Nov. 28, 2016, where the corrective action was deemed “unreasonably restrictive.”

The DOS asserted that the changes to offerors’ technical approaches were unnecessary. It stated that the agency did not evaluate specific key personnel in its evaluation. It argued that it evaluated alignment between the staffing plan and technical approach by “considering whether the level of effort proposed was adequate to perform the technical approach. The DOS argued that changes in key personnel would not impact this evaluation. It claimed it could reevaluate proposals consistent with the solicitation’s requirements without allowing broader revisions to proposals. The agency found it unfair that Peraton protested a change in the scope of its corrective action at Peraton’s request. It argued that sustaining the protest would penalize the agency for attempting to foster competition.

The GAO noted that an agency’s discretion when taking corrective action might permit proposal revisions. It stated that that offerors might revise their proposals as they see fit. It would not question an agency’s decision to restrict proposal revisions when taking corrective action as long as it is reasonable. When reviewing the reasonableness of an agency’s restrictions, the GAO considers whether discussions and revisions were expected to make a material impact on other areas of the offeror’s proposal.

The DOS argued it was only required to evaluate alignment between the staffing plan and technical approach by considering whether the level of effort proposed was adequate to perform the technical approach. The GAO found it unclear whether this type of evaluation approach was consistent with the solicitation or record. The solicitation indicated the agency would assess the key personnel identified in the staffing plan and the hours per labor category to determine whether “they align with the offeror’s technical approach.” It found it unclear whether the agency’s position was consistent with the plain language of the solicitation.

The GAO found the evaluation record did not support the DOS’ argument that it allowed offerors to amend all aspects of their proposals. It stated that the agency’s proposed corrective action would not allow revisions to staffing plan narratives the offerors included in their proposals. The information in these narratives was referenced in the DOS’ evaluation of the strength assigned to Peraton’s proposal. The GAO addressed the DOS’ fairness concerns by stating that when the DOS allowed proposal revisions, it was required to seek them in a reasonable manner. The GAO found the limited scope of proposal revisions allowed by the DOS unreasonable. Because the agency chose to allow key personnel substitutions, it must allow offerors to conform portions of their proposals that refer to key personnel they no longer propose. The GAO argued that not allowing them to do so would “force offerors to submit facially inconsistent proposals…” The GAO found this type of limitation unreasonably restrictive.

Conclusion

The GAO recommended the DOS amend its proposal revision instructions to allow offerors to revise their proposals by allowing them to revise their technical proposals by substituting key personnel and reevaluating technical proposals.

For more information on protests to government contracts, contact Whitcomb Selinsky PC.

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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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