Link: GAO Opinion
Agency: Department of Homeland Security
Disposition: Protest denied.
- Protest that successful vendor has an impermissible “biased ground rules” type of organizational conflict of interest is denied, where record shows that, contrary to protester’s assertion, former agency official working for successful vendor did not participate in planning the acquisition or preparing the solicitation.
- Protest that agency evaluator was biased in favor of successful vendor is denied where protester presents no evidence to support its assertion and record shows that evaluator in question rated protester’s and successful vendor’s quotations consistently.
- Protest challenging agency’s technical evaluation of protester’s quotation is denied where record supports agency’s evaluation conclusions, including its criticisms of protester’s quotation.
- Protest challenging agency’s selection decision is denied where record reflects reasoned judgment of source selection official, and selection was consistent with terms of solicitation.
General Counsel P.C. Highlight:
Detica asserts that CNA has an impermissible OCI, and that one of the agency’s evaluators was biased in favor of CNA. In this connection, the protester asserts that an individual, who formerly was the director of the agency’s office of preparedness policy, planning, and analysis (PPPA), resigned from his position and subsequently was hired by CNA. The protester maintains that the former PPPA director was involved both in planning the subject acquisition, and in identifying funds for the acquisition. GAO states that the Federal Acquisition Regulation (FAR) generally requires contracting officers to avoid, neutralize, or mitigate potential significant OCIs in order to prevent unfair competitive advantages or the existence of conflicting roles that might impair a contractor’s objectivity. As a general matter, OCIs can be broadly categorized into three groups: biased ground rules, unequal access to non-public information, and impaired objectivity. Substantial facts and hard evidence are necessary to establish the existence of an OCI; mere inference or suspicion of an actual or apparent OCI is insufficient for GAO to sustain a protest.
GAO concludes from the evidence presented that the former director was involved in the preliminary stages of preparing the agency’s annual budget; that he was aware that the budget in its draft form included funding for some unspecified research and analysis work; that he was no longer a federal employee at the time the SPAR requirement was identified with specificity and did not participate in preparing the solicitation or SOO; and that identifying the agency’s actual requirements and preparing the acquisition package (including the SOO) was accomplished by other individuals who were not in contact with the former director. Simply stated, the evidence does not support a finding of an impermissible OCI on the part of CNA.
Regarding bias, the protester alleges no more than that the former director maintained a professional relationship with one of the agency’s technical evaluators, and that this somehow resulted in bias in favor of CNA. GAO states that government officials are presumed to act in good faith and GAO will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition; where a protester alleges bias, it must not only provide credible evidence clearly demonstrating bias against the protester or in favor of the successful vendor, but must also show that this bias translated into action that unfairly affected the protester’s competitive position. Detica has not met this standard.
First, as noted, the protester alleges only generally that the former director and an agency technical evaluator maintained an ongoing professional relationship. Detica’s employee’s statements are unsupported as to the nature and extent of the alleged relationship between the agency’s evaluator and the former director. In any case, even if the protester’s inferences regarding the nature and extent of the alleged relationship are correct, nothing in the record shows that this alleged relationship translated into action that unfairly affected the protester’s competitive position. In this regard, the evaluator in question assigned both firms’ quotations excellent ratings under the solution and key employee factors, and while she assigned CNA an excellent rating and Detica only a very good rating under the past performance factor, Detica has not challenged the agency’s evaluation conclusions regarding either of those ratings. GAO concludes that there is no basis for a finding of bias on the part of the evaluator in question.
In its initial protest, Detica asserted that the agency misevaluated its quotation by 1) assigning it a weakness for not including a fully developed SOW, notwithstanding that it also found that the quotation presented a clear and comprehensive technical approach; 2) downgrading it for emphasizing information technology, despite the protester’s view that this was what was called for under the solicitation; and 3) downgrading it for offering too many managers and too few analysts. GAO states first that the agency’s evaluation conclusions appear reasonable and supported by the record. In this connection, it is not GAO’s role to reevaluate quotations in response to an evaluation challenge; rather, it will examine the record to determine whether the agency’s evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. A protester’s mere disagreement with the agency’s evaluation judgments, without more, is insufficient to show that the evaluation was unreasonable.
Both Detica’s initial arguments, and its largely repetitive comments, fail to address the substance of the agency’s criticism of the firm’s quotation. First, a review of the firm’s quotation shows that the evaluators’ judgments were reasonable and accurate. Of the personnel identified by name in the Detica quotation, [deleted] are described as performing management-type functions; of these [deleted] are specifically described as performing duties for the firm’s proposed management cell, while the remaining [deleted] are designated as leading the analytical and reporting cell and technical development cell respectively. Of the [deleted] remaining personnel identified by name in the firm’s quotation, only [deleted] a Detica employee designated as engaged in performing analytical (as opposed to managerial or leadership) functions, while the remaining personnel are all subcontractor personnel. The agency’s conclusion appears reasonable in light of this array of managerial and analytical personnel.
Detica lastly argues that the source selection decision was unreasonable and lacks adequate documentation. Detica’s arguments focus largely on the agency’s price reasonableness determination and on the adequacy of the documentation supporting the price/technical tradeoff. Regarding the price reasonableness determination, Detica asserts that the agency failed to give meaningful consideration to vendors’ quoted rates; it maintains that, in light of the disparity between the low- and high-priced quotations, the agency was required to perform some meaningful reasonableness evaluation. GAO states that under FAR sect. 8.404, agencies are specifically advised that they are not required to independently evaluate the reasonableness of prices because, in the context of an FSS procurement, the General Services Administration (GSA), prior to awarding the firm’s underlying FSS contract, has already determined that the firms’ fixed unit or hourly rate prices are fair and reasonable. The agency here was not required to perform an independent evaluation to determine the reasonableness of the firms’ unit prices.
The record includes a table comparing the prices received and the government’s independent estimate ($18 million). While the record shows that CNA’s price was not the lowest received, nonetheless, it was below the government estimate and was found to include a level of effort comparable to that used to prepare the government estimate. GAO has no basis to question the adequacy of the agency’s price analysis or the determination that CNA’s total price was fair and reasonable.
As for the price/technical tradeoff, the protester claims the record is inadequate to justify the agency’s payment of a higher price than Detica’s. Contrary to the protester’s assertion, the record here includes adequate documentation to support the agency’s source selection. Specifically, the source selection document (SSD) includes a detailed analysis of the respective quotations’ evaluated strengths and weaknesses. Significantly, the SSD shows that the agency identified eight strengths with CNA’s quotation and no weaknesses. Among other things, the agency noted that CNA’s quotation articulated all of the task requirements in the SOO and explained their methodology in a clear and concise manner; outlined a unique SOW that tied directly to the agency’s objectives; that the firm had strong experience and a proven track record with the agency; and laid out a staffing plan that was realistic, thorough and appropriate. In comparison, the agency identified only four strengths in Detica’s quotation, and four weaknesses. All three offerors understood the problem, but only CNA’s solution was viable and responsive to the problem. Detica offered an [deleted] solution that did not achieve the larger research and data collection objective of which [deleted] was only a small part. Since the SDD details the evaluation judgments and basis for the agency’s determination that CNA’s quotation represented the best value, GAO concludes that the agency adequately documented the rationale for its source selection. The protest is denied.