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ASRC and Ekagra Partners Protest of the U.S. Army’s Solicitation

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ASRC Federal Data Network Technologies, LLC and Ekagra Partners, LLC protested the terms of a fair opportunity proposal request (FOPR) issued by the U.S. Army.  The protest was for the Army’s Combat Capabilities Development Command Aviation and Missile Center (CCDC AvMC). ASRC and Ekagra argued insufficient information was provided to offerors to bid intelligently.   ASRC asserted the solicitation did not reflect the agency’s actual needs.  It argued the solicitation was silent regarding how the agency would use its estimates to evaluate proposals.  Ekagra also challenged the Army’s subsequent elimination of its proposal from consideration from the corruption of two of its files it uploaded to the agency’s portal.

Background

The U.S. Army released a solicitation in April 2019.  The solicitation requested on-site technical, computer, network and information systems support for the CCDC AvMC in Huntsville, Alabama, and its customers.  The solicitation stated the fixed-price portion of the work was to be comprised of “functional areas, support requirements, identified throughout the PWS, as applied to the operating environment…”  The T&M portion of the task order reserved for “above baseline support.”  The support for the Army’s baseline operations would be a fixed-price requirement.  The “above baseline” support would be a T&M requirement.

The Army used a best-value tradeoff analysis considering technical expertise, management approach, and cost/price.  The technical expertise factor was valued “significantly more important than the management approach factor.”  Both factors combined were “significantly more” important than cost/price.  The Army stated it would evaluate how well each proposal “demonstrates the offeror’s knowledge, understanding, and capabilities to satisfy the government’s requirement without causing disruption…”  The management approach factor consisted of three subfactors.  These were overall management and organizational plan, transition plan, and the strategic organizational transformation plan.  The overall management and organizational plan were considered more important than the other two subfactors.

Four offerors submitted proposals to the solicitation.  ASRC and Ekagra filed protests to the award in September 2019.  They argued the Army’s evaluation of proposals were improper and asserted the agency conducted improper discussions with SNAP, the offeror that was issued the task order.  In October 2019, the Army announced it would enter into discussions with all offerors, solicit revised proposals, and make a new selection decision.  GAO dismissed the protests as ‘academic’ due to the Army’s corrective action.  The Army notified offerors it would provide interchange notices (INs).  They would contain technical and cost/price evaluations, and allow offerors to submit questions to the agency based on the INs.

In March 2020, while the protests were pending, the Army notified Ekagra the two files it submitted as part of its proposal submission “were corrupted due to improper uploading” to the government portal.  Due to the files being inaccessible, the Army considered Ekagra as not submitting a complete proposal as required.  Ekagra filed a supplemental protest challenging the Army’s decision.

Analysis

ASRC and Ekagra challenged the sufficiency of the information in the solicitation.  They argued the solicitation did not provide enough information for offerors to adequately understand the apportionment of effort between fixed-price and T&M areas.  ASRC argued the Army did not explain how it would use the cost estimates.  Ekagra found the Army’s requests for information about its joint venture structure and costs unreasonable.  It found the agency improperly disqualified its proposal from further consideration despite its compliance with the Army’s instructions for submitting proposals.

Interested Party

The Army asserted Ekagra’s protest should be dismissed.  It argued Ekagra did not meet the definition of an “interested party.”  Under the Competition in Contracting Act (CICA) and GAO’s Bid Protest Regulations, an interested party is an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract.”  It stated Ekagra did not meet this standard because it failed to submit a complete proposal.

GAO disagreed with the Army.  It noted that Ekagra timely filed a protest prior to the deadline for receipt of revised proposals.  The remedy Ekagra sought was for the agency to revise the solicitation and allow offerors to compete the proposal.  This would allow Ekagra to be eligible to submit a proposal.  GAO found Ekagra remained an interested party because “its direct economic interest continued to be affected by the challenged solicitation …”

Allocation and Staffing

ASRC and Ekagra asserted the solicitation did not provide enough information so they could adequately understand the allocation of staffing.  They argued the solicitation and PWS documents “did not adequately delineate or define the fixed-price efforts relative to the T&M efforts.”  The FOPR required offerors to trace labor category and hour information to PWS tasks within their management plans.  The PWS included tasks and subtasks designated as fixed-price and T&M.  The descriptions for the tasks/subtasks did not indicate which part of the PWS task/subtasks would be fixed-price and which would be T&M.  GAO found the protest challenged the Army’s interpretation of the solicitation.  it found the agency’s interpretation of the scope of the fixed-price portion of the requirement vague.  It stated that protesters must challenge interpretations prior to a deadline when agencies express an interpretation of a solicitation that creates ambiguity.  GAO concluded the protest ground was not premature.

Conclusion

GAO sustained the protest.  It agreed with the protesters' argument that the Army did not provide enough information for offerors to propose staffing intelligently.  The Army asserted that an experience information technology offeror would “simply know this information, based on its expertise.”  GAO recommended the Army revise the solicitation to provide adequate description of its expectations.  If you find yourself in a similar situation as ASRC and Ekagra, contact Whitcomb Selinsky PC to help you maneuver the complexities of filing a protest.

About the AuthorRaymundo Ribota

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