1. U S Information Technologies Corporation, B-404357; B-404357.2, February 2, 2011

Link: GAO Opinion

Agency: Department of Defense

Disposition: Protest sustained.

Keywords: FSS Contracts; MAS Contracts

General Counsel P.C. Highlight: GAO states that when an agency issues an RFQ to vendors holding FSS contracts for the delivery of services at hourly rates, and, as here, a statement of work is included, the ordering agency must evaluate the quotations received consistent with the stated evaluation criteria.

U.S. Information Technologies Corporation (USIT) protests the issuance of a task order under a request for quotations (RFQ), issued by the Department of Defense, Defense Logistics Agency (DLA), for information technology services supporting and sustaining DLA's "Fusion Center."

The RFQ, which was issued pursuant to Federal Acquisition Regulation (FAR) subpart 8.4 procedures, sought "proposals" from vendors holding Federal Supply Schedule (FSS) contracts under Schedule 70, Information Technology. The solicitation included a detailed performance work statement (PWS), which identified various design, analysis, support, and sustainment tasks the contractor would perform. Vendors were informed that the task order would be issued on a best value basis, considering price and the following evaluation factors: technical solution; management approach; key personnel/experience; quality control approach; and past performance.

With regard to the technical solution factor, the RFQ provided for the evaluation of the vendor's overall approach, including approach to staffing and work breakdown structure. With regard to the key personnel/experience evaluation factor, vendors were informed that the agency would evaluate the qualifications and experience of the vendor's proposed task manager. With regard to past performance, the agency anticipated evaluating the quality of the vendor's relevant past performance, and success with projects similar in scope and complexity to the tasks identified in the PWS. With regard to price, the RFQ provided that the vendors' quoted prices must be in accordance with the rates and labor categories established in the vendors' FSS contracts.

The contracting officer (CO) reviewed the technical evaluation panel's (TEP) evaluation of the two firms' quotations and concluded that both vendors' quotations were equal in technical merit. However, the CO decided to issue the task order to the awardee on the basis of that firm's lower price.

USIT challenges the agency's evaluation of the awardee's price. GAO states that when an agency issues an RFQ to vendors holding FSS contracts for the delivery of services at hourly rates, and, as here, a statement of work is included, the ordering agency must evaluate the quotations received consistent with the stated evaluation criteria. The FAR also requires the agency to consider the level of effort and the mix of labor proposed to perform the task being ordered, determine that the total price is reasonable, and document the agency's price reasonableness determination.

GAO finds that the record here does not show that DLA's price evaluation was reasonable. Vendors were required to provide detailed pricing information, labor hours, and labor mix for each PWS task and to demonstrate the relationship between their pricing structure and their technical approach. USIT and the awardee both provided labor categories, corresponding labor rates, and hours by labor category for each task, as required by the RFQ. USIT and the awardee apparently have very different approaches to performing the PWS tasks, given the dramatic differences in the vendors' quoted labor hours and labor mix for the PWS tasks. The record indicates that the vendors' quoted labor hours were reviewed by the TEP, and found "sufficient to complete the tasks." There is also no documentation in the record demonstrating that the TEP or the CO evaluated the awardee's, or USIT's, labor mix to perform the PWS tasks, or performed the analysis required by FAR sect. 8.405-2(d) to determine whether the labor mix proposed would result in a reasonable price for performance. Rather, the TEP's evaluation report and CO's selection decision merely state that the TEP found that the vendors' total labor hours were considered sufficient to perform the PWS tasks. On this record, GAO cannot find a basis to uphold DLA's determination that the vendors' overall price (which is based upon the application of the vendors' FSS rates to their quoted labor hours for each labor category) was reasonable.

Next, USIT challenges DLA's evaluation of the vendors' quotations under the technical solutions, key personnel/experience, and past performance factors. Specifically, USIT asserts that the awardee's identified past performance references are not similar in scope and complexity to the work at issue here. GAO states that in reviewing protests of an agency's evaluation and source selection decision in procurements conducted under FSS procedures, it will not conduct a new evaluation or substitute our judgment for that of the agency but will examine the record to ensure that the agency's evaluation is reasonable and consistent with the terms of the solicitation.

Finally, the USIT argues that the agency ignored possible discriminators in the quotations that might have formed a valid basis for a cost technical tradeoff. For example, USIT contends that the agency failed to properly consider its specific experience at the Fusion Center, and its offer of the existing Fusion Center task manager. GAO states that where, as here, a solicitation anticipates the use of a best value evaluation plan--as opposed to selection based on low price and technical acceptability--evaluation of quotations is not limited to determining whether a quotation is merely technically acceptable; rather, quotations should be further differentiated to distinguish their relative quality under each stated evaluation factor by considering the degree to which technically acceptable quotations exceed the stated minimum requirements or will better satisfy the agency's needs. GAO has long stated that evaluation ratings should be merely guides for intelligent decision-making, and that therefore evaluators and selection officials should reasonably consider the underlying bases for ratings, including the advantages and disadvantages associated with the specific content of competing quotations, in a manner that is fair and equitable and consistent with the terms of the solicitation.

Here, the record shows that the TEP considered USIT's specific experience, and its offer of the existing Fusion Center task manager to be strengths in its quotation. The TEP also noted as a strength the awardee's similar experience and the offer of a task manager with relevant experience. Given the absence of an explanation in the record about why the differing strengths in the vendors' quotations did not reflect discriminators that should be considered in a cost/technical tradeoff, and the absence of any explanation about why--despite the assessed differing strengths--the vendors' quotations were otherwise technically equal, GAO finds that DLA failed to evaluate the quotations in accordance with the RFQ's criteria. The protest is sustained.

GAO recommends that DLA perform a new evaluation consistent with this decision, reopen negotiations with the vendors (if necessary), and make a new selection decision. GAO also recommends that the agency reimburse USIT for their reasonable costs of filing and pursuing the protests.

2. Qwest Government Services, Inc., B-404845, March 25, 2011
 

Link: GAO Opinion

Agency: Department of Homeland Security

Disposition: Protest dismissed.

Keywords: Terms of the Solicitation/Quotation; Task Order Protest

General Counsel P.C. Highlight: GAO has jurisdiction to entertain protests in connection with the issuance or proposed issuance of a task or delivery order only if the order has a value in excess of $10,000,000

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Qwest Government Services, Inc. protests the terms of an unnumbered request for quotations issued by the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) for data center hosting services for USCIS's Technology Engineering and Consolidation Center (TECC).

An order for the services will be issued to one of the three awardees under a General Services Administration indefinite-delivery/indefinite-quantity (ID/IQ) contract for telecommunications services. Qwest objects to language in the RFQ providing for the addition of approximately $14 million to the evaluated prices of contractors other than the incumbent service provider, Verizon, to take into account costs that the agency will incur if the services are provided in a new location.

Qwest argues that this price evaluation approach is fundamentally unfair and is a de facto sole-source award to the incumbent. GAO states that pursuant to 41 USC §4106(f)(1), it has jurisdiction to entertain protests in connection with the issuance or proposed issuance of a task or delivery order only if the order has a value in excess of $10,000,000, or it is alleged that the order increases the scope, period, or maximum value of the contract under which the order is placed. Qwest has not argued that the order here exceeds the scope, period, or maximum value of the underlying contract; rather, it maintains that GAO has jurisdiction over its protest because the value of the order in question is [more than $10 million].

As noted above, the RFQ provides for the addition of approximately $14 million to the evaluated price of any contractor proposing to provide the services in a new location. GAO has previously recognized that there are circumstances in which the successful contractor's proposed price is not the sole determinant of the value of an order. In these cases, the operative inquiry concerns the value of the goods or services being provided, and for which the contractor is, in fact, being compensated, under the order. Here, the agency will not be compensating the contractor for the costs of acquiring and/or configuring equipment necessary for performance of the order. Rather, the government will bear these costs apart from the task order and the costs will be assessed to contractors solely for the purpose of evaluation in the task order competition. Since the costs do not reflect a value to be provided by the contractor under the order for which it will be compensated, the value of these costs cannot be considered for the purpose of invoking GAO's task and delivery order protest jurisdiction. Because it is also apparent from the record that, unless the costs associated with the transition to a new location are included, the value of the order in question is less than $10 million, GAO concludes that it does not have jurisdiction over the protest. The protest is dismissed.

3. B&S Transport, Inc., B-404648.3, April 8, 2011
 

Link: GAO Opinion

Agency: Defense Logistics Agency

Disposition: Protest denied.

Keywords: Late Proposal

General Counsel P.C. Highlight: An Agency may consider for award a late, hand-carried offer if the government's misdirection or improper action was the paramount cause of the late delivery and consideration of the offer would not compromise the integrity of the competitive process.

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B&S Transport, Inc. challenges the rejection of its proposals as late under a request for proposal (RFP), issued by the Defense Logistics Agency (DLA), for various types of tires.

The amended solicitations required proposals to be submitted to the DLA in the lobby of Building 20 at the Defense Supply Center Columbus (DSCC) installation. The due date for proposals, as amended, was 1 p.m., Eastern Time, on January 10, 2011. As relevant here, the solicitations included an enclosure detailing the requirements for access to the DSCC. Offerors were informed that visitors to the DSCC facility, such as couriers, were required to be sponsored by an agency official and entered into the DSCC Visitor Notification System (VNS). Further, visitors would be required to register at the Visitor Processing Center (VPC) for identification verification, a background check, and issuance of a temporary vehicle registration. Additionally, a solicitation question and answer (Q&A) advised offerors that they were required to advise the agency via email a day in advance of the due date of the offeror's intent to use a courier for hand delivery, so that the courier could be entered into the VNS. The Q&A also advised that "[a]ny delays encountered at the [VPC] shall not constitute a basis for solicitation re-opening and therefore, an offeror who chooses to hand deliver proposals shall plan accordingly."

On the due date of January 10, B&S attempted to have its proposal delivered by a courier. A videotape provided by the agency in its report on the protest shows that B&S's courier arrived at the VPC at 12:50:12 p.m. Upon arrival, a DLA security officer checked the VNS and determined that the courier was not entered into that system. The security officer advised the courier that he needed a sponsor in order to be entered into the VNS and to have access to the DSCC facilities, and asked the courier if he had a point of contact in order to obtain a sponsor. The courier advised that he did not have a point of contact. At 12:54 p.m., the security officer suggested that the courier call the DLA Small Business Office, who advised the courier, and then the security officer, that they were not involved with the procurement and could not assist the courier. During this time, the courier called the B&S's in-house counsel for assistance. At 12:58 p.m., a DLA acquisition specialist received a call from B&S's in-house counsel, asking that the courier be entered into the VNS and allowed to deliver the proposal. The acquisition specialist entered the courier into the VNS, and erroneously directed him to deliver the proposal to Building 21. The courier departed the VPC at 1:03:57 p.m. Subsequent to the courier's departure from the VPC, the acquisition specialist discovered that he had incorrectly directed the courier to Building 21, rather than Building 20, as specified in the RFPs. The acquisition specialist called B&S's counsel and advised him of the error, and then corrected the VNS entry to allow the courier to access Building 20. The courier finally delivered the proposals to DLA personnel in Building 20 at 1:20 p.m., and the proposals were stamped as received at 1:21 p.m. DLA advised B&S on February 1, 2011, that its proposals had been rejected as late.

B&S contends that DLA should accept its proposals because the agency was the primary cause of the late filing, and because the courier was under the control of the agency at the time he arrived at the VPC. GAO states that it is an offeror's responsibility to deliver its proposal to the proper place at the proper time; proposals that are received after the exact time specified are "late" and must generally be rejected. The late proposal rules include limited exceptions under which late proposals may be considered. GAO has held that a late hand-carried offer may be considered for award if the government's misdirection or improper action was the paramount cause of the late delivery and consideration of the offer would not compromise the integrity of the competitive process. A late proposal may also be accepted if it is found to have been received at the designated government installation and was under the agency's control at the time set for receipt of proposals. Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility.

Here, GAO finds that the protester's actions were the paramount cause for the late delivery. The RFPs specifically stated that if an offeror intended to hand deliver its proposal, the offeror must provide notice to DLA a day in advance of delivery in order to be sponsored and be entered into the VNS. The RFPs further advised offerors that visitors would be required to check in at the VPC, and that any delays encountered at the VPC would not be a basis for accepting a late proposal. Despite the instructions and warnings in the RFPs, the record shows that B&S's courier was not entered into the VNS system prior to his arrival, nor did the courier have the appropriate contact information to obtain a sponsor for entry into the VNS. Moreover, the courier arrived at the VPC less than 10 minutes before the proposal receipt deadline. On this record, GAO concludes that the protester's actions, rather than the agency's actions, were the paramount cause of the late receipt. The protest is denied.

4. Computer Cite--Costs, B-402792.5; B-403769.2, April 14, 2011 

Link: GAO Opinion

Agency: Department of the Army

Disposition: Request denied.

Keywords: Protest costs; corrective action

General Counsel P.C. Highlight: GAO may recommend reimbursement of protest costs where an agency does not timely implement the promised corrective action that led to the dismissal of an earlier protest. GAO has also found that months-long delays do not by themselves constitute an undue delay where an agency reasonably justifies or explains those delays.

Computer Cite (CCite) requests that GAO recommend that the Department of the Army reimburse the firm the reasonable costs of filing and pursuing its protests with respect to section 8(a) awards made to another corporation for various support services.

The Army issued a request for quotations (RFQ), as a small business set-aside, for the award of single contract. In response to the protest of another vendor, the Army concluded that the solicitation did not meet its needs, cancelled the solicitation, and determined that it would issue a new solicitation. The Army then issued another RFQ, as a small business set‑aside. Five vendors, including CCite, submitted quotations, all of which were found to be unacceptable. The Army cancelled the solicitation and offered the procurement to the Small Business Administration (SBA) for a direct award under that agency's section 8(a) program to another corporation. SBA accepted the procurement and made a direct award. CCite protested, arguing that the award violated SBA's regulations. Performance of the awardee's contract was stayed by the protest. Before submitting its report in response to CCite's protest, the Army informed GAO that it would withdraw this requirement from the section 8(a) program and resolicit the requirement as a small business set-aside. CCite's protest was dismissed as academic.

Before taking corrective action in response to CCite's protest, the Army determined that the services were necessary for mission-critical support, and, to maintain emergency services while CCite's protest was pending, the Army decided to award a four-month bridge contract to the original awardee. The SBA accepted the Army's offer for award of a four-month bridge contract, as a section 8(a) directed award. CCite protested the award of this bridge contract as violating SBA's regulations. The performance of the first bridge contract was stayed by the protest. The Army determined that a "significant portion" of the contract's scope was not required and terminated the contract. GAO again dismissed CCite's protest as academic.

The Army awarded a second bridge contract to the original awardee to obtain limited emergency dispatch services for 30 days; the awardee was the incumbent contractor for these services. This contract was not protested.

CCite requests that GAO find that the protester should be reimbursed its costs of filing and pursuing its protests, because the Army has unreasonably delayed implementing the promised corrective actions that caused GAO to dismiss its protests as academic. GAO states that it has recognized that the reimbursement of protest costs may be appropriate where an agency does not timely implement the promised corrective action that led to the dismissal of an earlier protest. GAO has also found that months-long delays do not by themselves constitute an undue delay where an agency reasonably justifies or explains those delays.

The Army states that following the dismissal of CCite's protests, in early November 2010, the agency transferred the procurement to a new contracting office "to provide a fresh perspective on a problematic procurement." The agency's contract specialist in the new contracting office began reviewing the requirements and, on December 17, 2010, drafted a request for proposals (RFP) for these requirements. Revisions were made to the draft RFP in January 2011. On February 16, the Army posted a synopsis of its requirements on the FedBizOpps website, and on February 19, the RFP was posted on the website as a small business set-aside. The RFP has since been amended three times. The closing date for receipt of proposals was March 3. The record shows that the Army did not unduly delay implementing its promised corrective action. Instead, from the time the Army proposed corrective action in October, 2010, until the issuance of the RFP as a small business set-aside four months later (in February, 2011), the Army acted as it promised in its corrective action letter. Accordingly, GAO finds no basis to recommend that CCite should be reimbursed its costs for filing and pursuing its protests. The request is denied.