Matter of AttainX, Inc.
Decided: January 23, 2023
Agency: General Services Administration
Disposition: Protest Sustained
This case offers clarity on requirements related to an agency’s assessment of experience when analyzing proposals from joint ventures. Here, GAO concluded that the agency’s evaluation of a solicitation’s “experience” factor was unreasonable, even though it satisfied the solicitation requirements, because it was not consistent with SBA regulations. GAO stated that even if a solicitation does not require experience examples from a joint venture itself or the individual members, the SBA regulations require the agency to evaluate each joint venture member individually when the joint venture itself does not demonstrate it has the required experience.
This case highlights the importance of having knowledgeable legal counsel involved in protests, because even though a proposal may meet solicitation requirements, there are additional legal requirements that must also be satisfied. Companies should thoroughly evaluate the potential for success with any protest situation. The time, expense, and negative consequences associated with challenging your Government customer warrants a strategic evaluation between your executive leadership, capture, proposal, and legal teams. General Counsel has the experience and drive to assist clients with assessing award decisions, developing legal courses of action, filing either as an unsuccessful bid protestor or the awardee intervenor, litigating the protest, and developing post-decision lessons learned for more effective future business development practices.
Summary of Facts
AttainX, Inc., an 8(a)1 woman-owned small business, protests the issuance of a task order to MiamiTSPi, LLC, an 8(a) small business joint venture, by the General Services Administration (“GSA”) under RFQ No. 47QFNA22R0006, for information technology services. GSA issued the solicitation on June 14, 2022 as a total small business set-aside pursuant to FAR subpart 16.5. Under the RFQ, the successful vendor will provide multi-disciplinary teams to develop software applications and maintain existing applications. Teams would be composed of members having expertise in business analysis, user centered design, product management, agile software development, systems integration, all forms of testing, and development operations.
The competition was limited to firms holding Streamlined Technology Acquisition Resources for Services (STARS) III contracts. The solicitation advised that quotations would be evaluated based on: (1) similar experience; (2) technical approach; (3) staffing and qualifications; and (4) price. Award would be made on a best-value tradeoff basis. GSA received quotations from 13 vendors, including AttainX and MiamiTSPi, by the closing date. MiamiTSPi is a tribally-owned 8(a) SBA-certified joint venture made up of Miami Technology Solutions, LLC (MTS), the managing member, and Technology Solutions Provider, Inc. (TSPi), the minority member.
The contracting officer, who was also the source selection authority (SSA), reviewed the technical and price evaluations and concluded that AttainX and MiamiTSPi “stood above” the other vendors and conducted a comparative analysis of their quotations. Under the technical factors, the contracting officer found that AttainX had “a slightly better overall [e]xceptional rating,” but that AttainX’s slight technical advantage did not merit paying a 45 percent price premium over MiamiTSPi’s quotation, which also was “rated as overall exceptional with minimal risk.” On September 28, 2022, the GSA notified AttainX that it had issued the task order to MiamiTSPi and AttainX filed this protest.
Basis of Protest
AttainX argued that GSA unreasonably evaluated MiamiTSPi’s quotation under the similar experience factor. Specifically, AttainX contended that the agency failed to reasonably evaluate the risk of MiamiTSPi’s quotation because it failed to consider the fact that the experience examples submitted by MiamiTSPi were not performed by either MiamiTSPi or MTS, the managing protégé member; rather, the examples were solely for work managed by TSPi, the minority joint venture member.
In reviewing protests of awards in task order competitions, GAO does not reevaluate quotations, but examines the record to determine whether the evaluations and source selection decision were reasonable and consistent with the solicitation’s evaluation criteria and applicable procurement laws and regulations. When evaluating a small business joint venture for award of a contract, the Small Business Act requires agencies to consider the experience of the individual members of the joint venture “if the joint venture does not demonstrate sufficient capabilities or past performance to be considered for award of a contract opportunity[.]” The Small Business Administration (“SBA”) regulations implementing this statutory provision require agencies to consider work done and qualifications held individually by each partner to the joint venture as well as any work done by the joint venture itself previously.
Here, GAO found that based on the record and the SBA regulations, “we cannot conclude that the agency reasonably evaluated MiamiTSPi’s quotation under the similar experience factor.” Even though the agency contends that similar experience examples were submitted by either MiamiTSPi or one of its joint venture partners, the record shows only that the awardee submitted project examples for TSPi by itself and as part of a different joint venture (MTSPi). GAO determined that the agency therefore did not evaluate a project example from the joint venture, MiamiTSPi, or from MTS, the managing protégé member of the joint venture.
GAO noted that even though the solicitation does not require examples from the joint venture itself or the individual members, the SBA regulations require the agency to evaluate each joint venture member individually when the joint venture itself does not demonstrate it has the required experience. GAO confirmed that the agency does not have license to ignore SBA regulations in its evaluation. Thus, GAO concluded that the agency failed to properly evaluate MiamiTSPi’s quotation in accordance with SBA regulations and its evaluation was unreasonable.
Our Government Contracts Practice Group has extensive experience in government contract law, helping clients solve their government contract problems relating to the award or performance of a federal government contract, including bid protests, contract claims, small business concerns, and teaming and subcontractor relations. If you need more guidance or information, contact Craig Lawless, Senior Counsel in our Government Contracts practice area at General Counsel, P.C., 703-266-1865.