Link: GAO Opinion
Agency: Department of Education
Disposition: Protest sustained.
Where solicitation instructed offerors that their proposed staffing plans should at a minimum indicate the percentage of their staffs with third party certification, and protester identified in its proposal the number of its staff members holding third party certification, protester’s failure to express the proposed staff numbers also as a percentage of total staff may not reasonably be viewed as a deficiency since the information that protester did furnish in fact provided a better understanding of its proposed staffing.
General Counsel P.C. Highlight:
The protester argues that the evaluators lacked a reasonable basis for finding its proposal unacceptable. EM&I asserts that, contrary to the evaluators’ finding, it did submit proof of organizational-level accreditation with its proposal, and that the evaluators’ first finding of deficiency was therefore unjustified. The protester further argues that its failure to indicate the percentage of its staff with third party certification should not have been considered a deficiency. The protester maintains that but for these errors, its proposal would have been determined acceptable, and that a technical rating of acceptable would have placed its proposal, which received a better past performance rating than two of the six awardees’ proposals, in line for award. GAO states that in reviewing protests against allegedly improper evaluations, it is not GAO’s role to reevaluate proposals. Rather, GAO examines the record to determine whether the agency’s judgment was reasonable and in accord with the evaluation factors set forth in the RFP.
In its report on the protest, the agency acknowledged that it had erred in finding that the protester had failed to submit proof of organizational-level accreditation; accordingly, the agency withdrew this finding of deficiency. However, under the corporate capability factor, the RFP provided in relevant part as follows: Offeror shall describe its staffing plan, in particular those with the education and experience to perform successfully the functions outlined in the scope of services. This should include, at a minimum, the following: “Percentage of its staff that have third party certification, such as Project Management Institute’s Project Management Professional (PMI PMP), CSPM-Certified Project Manager (CSPM), Certified Information Security Manager (CISM), Certified Information Systems Auditor(CISA), Certified Information System Security Professional (CISSP), Certified Software Quality Engineer (CSQE), Certified Cost Estimator/Analyst (CCE/A), or other similar industry-recognized accreditation or certification.” EM&I responded to the above instruction by furnishing a table that identified the number of staff members employed by each member of its team who possessed each of 12 different types of professional certification. The proposal did not indicate the overall percentage of proposed staff holding third party certification, however, nor did it furnish the evaluators with overall staffing numbers, leaving the evaluators without a basis for calculating the percentage themselves.
EM&I argues that the RFP instructed offerors to furnish a percentage at a minimum, and that it had exceeded the minimum by furnishing actual numbers of certified employees. The protester maintains that if, for example, an offeror had complied with the instruction by providing that 50% of its staff possessed certifications, the agency would be unable to determine whether the offeror was proposing five individuals with certifications out of ten total employees or 50 individuals with certifications out of 100 total employees; in addition, the agency would be unable to tell how many employees had each particular type of certification. The protester asserts that the information that it furnished in its table gave the evaluators a much more comprehensive understanding of the staff proposed and thus exceeded the minimum called for in the RFP. GAO finds that this argument has merit.
Given that the RFP here contemplated the award of multiple ID/IQ contracts to perform as yet undefined tasks, the request for information regarding staff with third party certifications may only reasonably be interpreted as a request for information regarding certified staff members within the offeror’s organization who would be available to work on task orders that the contractor might receive. While solicitation requirements are to be enforced as stated, in the unusual circumstances of this ID/IQ contract competition, GAO agrees with the protester that the data in its table provided the evaluators with more, and more meaningful, information regarding its available staffing resources for future task orders than a mere percentage would have. GAO also notes that it is not clear from the record how the agency evaluated the percentages, other than mechanically checking whether one was furnished. There is no indication in the record, for example, that a particular percentage was needed for a proposal to be deemed acceptable. In the absence of any evidence that the protester’s furnishing of the actual number of its employees with certifications, as opposed to the percentage of its employees with certifications, resulted in the agency’s being unable to determine the acceptability of its proposed staffing plan, GAO finds that EM&I’s furnishing of actual numbers may only reasonably be viewed as having met the agency’s requirements for identifying offeror staff with third party certifications.
The agency argues that EM&I’s proposal would not have been in line for award even if the second finding of deficiency were withdrawn because the proposal also had two weaknesses. However, the record shows that the protester’s proposal would have been rated acceptable but for the deficiencies, which, according to the debriefing letter, is the same rating that each of the proposals selected for award received. To the extent that the agency is arguing that EM&I’s proposal would not have been selected for award even if it had received the same overall technical rating as the other proposals because the evaluators identified strengths in those proposals, but none in the protester’s–that is, the awardees’ proposals were on the high end of the acceptable range, whereas the protester’s proposal, even without the deficiencies, would not have been–the agency’s argument ignores the fact that the RFP identified past performance/past experience as the most important evaluation factor and the protester received a better past performance rating than the six awardees. Thus, at a minimum, the agency would have to consider EM&I’s proposal as part of a price/technical tradeoff to determine the proposals offering the best value to the government. Accordingly, on the record here, GAO concludes that there is a reasonable possibility that the evaluation error resulted in competitive prejudice to EM&I, that is, but for the error, EM&I would have had a substantial chance of receiving an award. The protest is sustained.