Matter of: AT&T Corporation

Agency: Department of Commerce, U.S. Census Bureau

Disposition: Protest Sustained

Keywords:  Evaluation Criteria; Documentation of Evaluation

Decided: October 5, 2017

General Counsel P.C. Highlight:   It is essential that evaluation and source selection decisions are adequately documented.  Where the agency engages in discussions, they must be fair and equitable to all parties involved.

Summary of Facts

On December 6, 2016, the Department of Commerce, U.S. Census Bureau (USCB) issued Phase II of request for proposals (RFP) to six holders of a government wide agency contract.  The RFP called for a fixed-price task order, seeking a single integrated solution for mobile devices and services related to same.   The devices and services sought were for support of the 2020 Census operations.  Relevant to the protest at hand, the RFP called for solutions that included:

• Mobile devices meeting USCB usability, performance, and security requirements;
• Reliable and continuous cellular network coverage; and
• A technology refresh assessment.

The RFP indicated the award would be based on best value, considering, among other factors, performance/experience and technical approach.  The RFP indicated past performance/experience was the most important factor, with the other non-price factors being equally important.  However, non-price factors were assigned significantly more value than the price factor.  Evaluation called for a determination of which proposals first satisfied the requirements, and then an evaluation of strengths, weaknesses, and risks.

Within the proper time frame, the agency received four proposals, including one from AT&T Corporation (AT&T), and CDW Government LLC (CDWG).  Upon receipt of proposals, the agency engaged in a technical evaluation of the proposals. Next, the agency engaged in discussions.  This was followed by a request for and receipt of revised proposals.  In the final analysis, CDWG’s proposal received the highest technical rank, with a price of $283,492,962.  AT&T’s proposal, ranked second in the technical evaluation, bore a price tag of $191,850,841.

The evaluation of proposals is heavily redacted in the decision.

Basis for Protest

AT&T challenged the agency’s evaluation of proposals, along with their final decision.

Misleading and Unequal Discussions

AT&T complains both their proposal and CDWG’s proposals were determined to have potential bias in their multi-carrier approaches.  However, while CDWG was provided the opportunity to address the potential for bias in their technical exchange, AT&T was not afforded the same opportunity.

Technical Evaluation

AT&T argues their technical approach was evaluated, taking into consideration the agency’s concern for potential bias.  AT&T further argues the source selection decision identified this potential bias as a factor in the decision.  A review of the record establishes a mixed evaluation, with one document indicting the risk was not assessed, another indicating the risk was eliminated, and a third indicating the risk could be mitigated.

Further, CDWG’s assessment included a significant strength for the selected mobile device.  The best value determination portion of the record included this conclusion.  However, there was no supporting documentation in the technical evaluation.

GAO Decision

Misleading and Unequal Discussions

The GAO notes the Federal Acquisition Regulation § 16.505 doesn’t provide for specific requirements when discussing task orders.  However, when agencies engage in exchanges in task order competitions, “They must be fair and not misleading.”  Additionally, agencies may not frame discussion questions in a way that misinforms the offeror about the agency’s concern or fails to address the agency’s actual concerns.  Agencies are prohibited from discussion and conduct which favors one offeror over another.  In this case, both CDWG and AT&T had proposals which included previously selected carriers.  While CDWG was asked about potential bias, and addressed that concern in their revised response, AT&T was not asked about bias in their approach.  Consequently, they did not address it at the same level of detail in their revised response.  AT&T was then judged lacking or failing to address carrier selection bias.

Because the discussions were unequal and misleading, the GAO sustained the protest.

Technical Evaluation

Given the lack of adequate documentation, reliance on the “risk” of potential bias was unwarranted and unreasonable.  Further, the reliance on a representation of a significant strength based on CDWG’s selected mobile device, without adequate documentation, was improper.

Protest Sustained

The GAO found the evaluation was flawed, and AT&T was prejudiced by the flawed evaluation.  Competition should be reopened, with discussions and proper documentation of the subsequent evaluation.