Decided: December 20, 2021
Agency: Department of Homeland Security
Disposition: Protest Sustained
Keywords: Material Misrepresentation; Unequal Treatment of Offerors
This proposal shows the stark consequences resulting in the misrepresentation by an offeror, particularly if the agency relied upon the misrepresentation and it had a significant impact upon the evaluation. Here, the awardee’s misrepresentation about the work experience of a proposed key individual ultimately resulted in the termination of the task order and the awardee being excluded from competition. GAO also sustained this protest because the of the agency’s disparate treatment in the evaluation of the proposals between the awardee and protester.
Protesting an award should be a data driven, fact specific, strategically assessed, and appropriately funded decision for any business. However, Government Contractors often cannot obtain proof substantiating a wrongful award without filing a protest. With GAO bid protests, such information is typically uncovered from the Agency Report, available 30-days after the protest is filed. General Counsel, P.C. helps our clients reach critical decisions before protesting an unsuccessful award or intervening as a successful awardee, litigating bid protests through to decision, and adapting post-decision internal methods for a more successful acquisitions win plan.
Summary of Facts
Insight Technology Solutions, Inc. protests the issuance of a task order to A P Ventures, LLC, pursuant to fair opportunity proposal request (FOPR) No. 70CTD021R00000002, issued by the Department of Homeland Security, U.S. Immigration and Customs Enforcement for information technology support services for the agency’s student and exchange visitor program (SEVP). The agency issued the FOPR on April 28, 2021
Under the FOPR, offerors were to provide proposals consisting of a written response to the FOPR and a video presentation and the agency would conduct an initial evaluation of proposals considering two evaluation factors, certifications and experience, then perform a down-select to a maximum of four “best-suited” proposals to continue to the next phase and be considered for award. In the next phase, the agency was to evaluate the remaining proposals considering three additional evaluation factors: technical approach, management approach, and price.
The FOPR stated that the agency had identified minimum qualifications for key personnel in the performance work statement (PWS), including a project operations manager, which “shall have a minimum of five (5) years of experience in managing projects, with a focus on business process and re-engineering projects.” The FOPR also noted that proposed “personnel that exceed the minimum requirements may be evaluated more favorably.”
The agency selected four offerors to proceed to the next phase, including Insight and A P Ventures. Relevant here, A P Venture’s proposal stated the proposed project operations manager had “9 years of relevant experience including 5 years support and quality oversight of the SEVP Contact Center.” The source selection authority (SSA) concluded that A P Ventures’s proposal represented the best value to the government, finding that A P Ventures’s proposal was superior to Insight’s under both the technical approach and management approach factors and that these advantages warranted the payment of a price premium. When comparing the proposed management approaches in its tradeoff analysis, the SSA specifically noted that A P Ventures proposed “personnel with significantly more experience than the minimum requirements.” Insight requested a debriefing and filed this protest.
Basis of Protest
Insight asserts that the evaluation was improper because A P Ventures misrepresented the relevant experience of its proposed project operations manager. Insight also contends that the proposals were evaluated disparately under the management approach factor because A P Ventures was assessed a raises-confidence observation, while Insight was not assessed the same raises-confidence observation, despite proposing similar approaches.
GAO explained that a material misrepresentation in a proposal can provide a basis for disqualifying a proposal and canceling a contract award based upon the proposal. A misrepresentation is material where the agency relied upon it and it likely had a significant impact upon the evaluation.
Here, the PWS contained a requirement that the project operations manager have a minimum of 5 years of experience in managing projects, with a focus on business process and re-engineering projects. A P Ventures’s proposal stated that its proposed project operations manager had “9 years of relevant experience including 5 years support and quality oversight of the SEVP Contact Center.” However, GAO found “no support in the record for A P Ventures’s claim that its proposed project operations manager had 9 years of experience managing projects.” Rather, the record only shows that the proposed project operations manager had 11 months of experience managing projects at the relevant time. Thus, GAO determined that A P Ventures’s statement that its proposed project operations manager had 9 years of project management experience was a misrepresentation.
GAO also determined that the agency clearly relied on A P Ventures’s misrepresentation in evaluating the firm’s proposal, since the agency found that the proposed key personnel had “experience that exceed[s] the minimum experience requirements identified by the PWS.” The agency argues that any misrepresentation was not material to the source selection decision and therefore not prejudicial to Insight, since nothing would have changed if the experience at issue had not been evaluated as exceeding the minimum experience requirements.
However, GAO concluded that had A P Ventures properly represented its proposed project operations manager’s relevant experience, the agency could not have reached the conclusion that this proposed key person exceeded or even met the FOPR’s minimum requirements. Thus, GAO concluded that A P Ventures’s misrepresentation had a material effect on the evaluation because it formed the basis for the agency conclusions that A P Ventures’s proposal both met and exceeded the proposed project manager key person minimum qualifications. GAO also determined that Insight was prejudiced by A P Ventures’s material misrepresentations. GAO found that the record establishes that Insight’s proposal was the lowest-priced proposal, and if A P Ventures’s proposal had been eliminated from the competition or less favorably evaluated, Insight would have had a substantial chance of receiving the award. GAO sustained the protest on this basis.
Insight also argues that the proposals were evaluated disparately under the management approach factor. GAO noted that “it is a fundamental principle of federal procurement law that a contracting agency must treat all offerors equally and evaluate their proposals evenhandedly against the solicitation’s requirements and evaluation criteria.” Where a protester alleges unequal treatment in a technical evaluation, it must show that the differences in ratings did not stem from differences between the offerors’ proposals.
Here, the contemporaneous record shows that both of the specified approaches that the agency found to increase the likelihood of success in A P Ventures’s proposal were also included in Insight’s proposal.
Despite this nearly identical proposal language, the agency evaluated the proposals differently. The agency argues that other aspects of the approaches not discussed in the contemporaneous evaluation report show differences in the two approaches that justify the disparate assessment. However, GAO noted that when reviewing an agency’s evaluation, “we accord much greater weight to contemporaneous source selection materials than to representations made in response to protest contentions.” Here, GAO determined that the agency’s post-protest defenses are not supported by the contemporaneous record and afforded them “little weight.”
Based on the record, GAO concluded that the agency evaluated proposals in a disparate manner when it assessed a raises-confidence observation only to A P Ventures’s proposal for the relevant proposal aspects. While GAO noted that it “cannot say whether the agency would have maintained its view that the awardee’s proposal was sufficiently superior to warrant payment of its price premium,” if the proposals were evaluated similarly, “in such circumstances, we resolve any doubts regarding prejudice in favor of the protester because even a reasonable possibility of prejudice forms a sufficient basis to sustain a protest.”
GAO sustained the protest and concluded that the appropriate remedy is for the agency to exclude A P Ventures’s proposal from the competition, finding that “exclusion of an offeror from a competition is warranted where the offeror made a material misrepresentation in its proposal and where the agency’s reliance on the misrepresentation had a material effect on the evaluation results.”
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.