Link: GAO Opinion
Agency: Department of Justice
Disposition: Protest sustained.
Protest challenging agency evaluation of quotations received in response to solicitation for establishment of a blanket purchase agreement is sustained where record fails to demonstrate that the evaluation was reasonable.
General Counsel P.C. Highlight:
AINS generally challenges the evaluation of both its own quotation and Privasoft’s quotation. GAO states that where an agency conducts a formal competition for the establishment of a BPA, GAO will review the agency’s actions to ensure that the evaluation was reasonable and consistent with the solicitation and applicable procurement statutes and regulations.
First, AINS objects to the agency’s finding that its product failed “to fully meet” critical requirement [deleted], which requires the vendor to propose [deleted]. The protester responded to this requirement by noting in its self-assessment that this feature was targeted for release in version 7.0 of its FOIAXpress software, which was due out in July 2009. During discussions, the agency noted that the requirement had to be met by the time of user acceptance testing, and that AINS’s proposed date of July 2009 appeared to be well beyond the user acceptance testing date. The agency also noted that the proposed solution would be in an AINS product (version 7.0) that was not yet in existence. Accordingly, the agency asked AINS to confirm whether it could meet the requirement by the time of user acceptance testing and to explain how it would do so and the state of development of its software with regard to meeting the requirement. AINS responded by stating that it would have critical requirement [deleted] met by the time of user acceptance testing. The protester explained that it would accomplish this by enhancing the latest version of its FOIAXpress software to include the ability to [deleted], and that after this had been accomplished, a user with the appropriate permission would be able to [deleted], which could then be [deleted]. The protester furnished a detailed timeline for completing and testing the enhancement.
While the contemporaneous record lacks detail as to the basis for the evaluators’ finding that AINS’s response failed to demonstrate full compliance with requirement [deleted], the agency furnished the following explanation in its report: although AINS’s revised quotation had indicated that, once enhanced, the protester’s software would be able to [deleted], and that these reports could then be exported into various formats, “it [did] not address making the underlying [deleted], which is what Section [deleted] specifically requires.” The agency also noted that the protester’s response made clear that its software was in a developmental stage. The protester further argued that the evaluators had treated the vendors unequally by failing to identify Privasoft’s response to the requirement as a weakness, even though it also failed to address making the [deleted] available to the public. In its report on the protest, the agency responded to the protester’s allegation of unequal treatment by conceding that Privasoft had not directly addressed the requirement pertaining to [deleted]; DOJ maintained that it reasonably had not questioned Privasoft’s compliance, however, because Privasoft had “elsewhere indicated unequivocally it could meet the requirement.” The agency noted in this connection that Privasoft had represented in its self-assessment that the capabilities required by [deleted] were “currently available” in its software. GAO fails to see a meaningful distinction between the two vendors’ responses to the requirement pertaining to [deleted], neither of which specifically addressed the capability to make the data available outside the context of a report. Accordingly, GAO does not think that the agency has demonstrated a reasonable basis for finding that AINS, but not Privasoft, failed to “fully meet” the above requirement.
Next, AINS takes issue with the evaluators’ finding that its quotation failed to fully address requirements [deleted]. Section 11.18 of the requirements matrix set forth a series of requirements pertaining to the contents of the annual FOIA reports that the software was to generate. During discussions, the agency asked the protester how its product would comply with the new requirements of the OPEN Government Act of 2007, as well as related OIP guidance. AINS responded by listing a number of ways in which its product complied, one of which was that it had [deleted]. In Attachment A to its response summarizing the enhancements included in version 6.2 of its software, AINS represented that its software “[n]ow include[d] [deleted] items.”
The agency argued in its report that despite the fact that AINS had represented in its self-assessment that version 6.2 of its software met the foregoing requirements, it was reasonable for the evaluators to question whether the protester’s software complied, given that AINS had not addressed the requirements in its discussion question response summarizing the enhancements included in version 6.2. The record does not support the agency’s assertion that AINS’s discussion question response failed to address the requirements in question, however; as noted above, Attachment A to the protester’s response indicated that the software now included the items required by [deleted]. Absent an explanation from the agency as to why it did not consider the information in Attachment A to be an adequate response to the requirements, the record does not provide a reasonable basis for the evaluators’ finding that the protester’s quotation failed to fully address them.
Next, AINS takes issue with the evaluation team’s finding that its quotation failed to make clear which version of its software was being “proposed.” While GAO agrees that the protester’s response to the agency discussion question regarding the availability, deployment, and functionality of version 6.2 of its software was confusing in that it included references to software version 6.X, we fail to see how this resulted in a lack of clarity as to which version of the software was being “proposed.” AINS’s FSS contract does not specify a particular version of its FOIAXpress software, nor did AINS “propose” in its quotation to furnish a particular version of the software–rather, in accordance with the RFQ’s requirements matrix, AINS’s response described which of the agency’s requirements were met in the current version of its product and which were under development for release in a future version of the software. GAO finds that it was reasonably clear from the protester’s quotation that it would furnish the version of the software that was current at the time any order was placed (as opposed to the version identified as the current version at the time the quotation was submitted).
Finally, AINS argues that it was unreasonable for the evaluators to attribute a weakness to its quotation under the staffing/key personnel factor based on the allegedly limited technical background of its proposed Product Certified Subject Matter Expert. The protester contends that but for the wrongly attributed weakness, its quotation would have received a rating of [deleted] (the maximum possible) under the factor. In its report, the agency argued that the position in question required technical experience and that the resume of the individual whom the protester designated for the above position demonstrated management, but not technical, experience. In support of its position, the agency cited an excerpt from the proposed individual’s resume, which described the responsibilities of her current position as including [deleted]. The agency also cited language from the individual’s resume stating that her general experience included “increasing responsibilities in FOIA business process systems design and/or management; establishing project plans as they related to [AINS’s] standard implementation and rollout methodology and the customer’s business process.”
In GAO’s view, the agency’s argument ignores additional information set forth in the resume pertaining to the proposed individual’s experience. The resume also indicated that the proposed individual had a degree in [deleted] and that she had experience working as both a [deleted] and a [deleted]. It is not clear from the record that the agency considered any of this information, and the agency was obviously obligated to evaluate the resume in its entirety. GAO therefore agrees with the protester that the evaluation was flawed in this regard.
AINS’s chief argument is that it was improper for the agency to enter into a BPA with Privasoft Corp. because it was Privasoft, Inc. that submitted the original quotation. The record clearly establishes that Privasoft, Inc. submitted the original quotation and that it was the entity seeking to enter into a BPA with the agency. The original BPA (i.e., the BPA that was the subject of AINS’s first protest) was between DOJ and Privasoft, Inc. AR, Tab 17. In addition, Privasoft responded to the agency’s first request for clarification by explaining that since Privasoft Corp.’s FSS contract indicated that orders were to be placed with Privasoft, Inc., it was reasonable for the quotation to have been submitted by, and the BPA to be established with, Privasoft, Inc. Also, Privasoft posed the following question in response to the agency’s request for revised quotations: “Does DOJ have any concern regarding the administrative structure of our bid and of the contract, with Privasoft Corp. as the holder of the GSA Schedule 70 contract, and Privasoft, Inc. as the holder of the BPA?”
Although Privasoft, Inc. submitted the original quotation, under the facts here GAO sees no basis to object to the establishment of a BPA with Privasoft Corp., the vendor holding the FSS contract. A BPA is not a contract, and orders placed against an FSS BPA are placed against the underlying FSS contract. That is the situation here: the quotation submitted by Privasoft, Inc. was for the establishment of a BPA under Privasoft Corp.’s FSS contract. As noted above, Privasoft Corp.’s FSS contract identified Privasoft, Inc. as the entity through which ordering and payment transactions would be effected. Under these circumstances, we do not think that the roles of the two different corporate entities are a basis for us to sustain the protest. The protest is sustained.