Agency: Department of Defense
Disposition: Protest Sustained
Decided: May 18, 2018
Released: June 19, 2018
Keywords: Proposal Evaluation
General Counsel P.C. Highlight:
An agency evaluation must hold the offerors to the solicitation’s stated requirements. When evaluating proposals, sweeping language providing assurances of compliance with the solicitation requirements is insufficient. Where language from both acceptable and outstanding ratings is used in assessing a proposal, absent an explanation, the agency’s intended rating is not clear simply from the rating given.
Summary of Facts
Immersion Consulting, LLC protests the issuance of a task order to NetImpact Strategies to provide program management support services. This is the second protest by Immersion challenging the agency’s award to NetImpact.
The First Protest
The solicitation that is the basis of this protest was first issued on April 17, 2017, to holders of the General Services Administration (GSA) Federal Supply Schedule (FSS) No. 874-7 for integrated business program support services. The award was made on a best value tradeoff basis, considering, in descending order of importance:
- Past performance
The technical section had three subfactors: technical approach and methodology, project management plan, and staffing plan. The staffing plan subfactor required vendors “demonstrate how their staffing plan supported the proposed technical approach by providing labor categories, experience and skill levels of proposed personnel, labor hours, and a cross walk to the performance work statement (PWS) requirements.”
The timely responses of both NetImpact and Immersion were evaluated by a source selection evaluation board. (SSEB). Under the technical factor relevant to this protest, Immersion received three strengths for their proposal. NetImpact received two strengths and one weakness. Rating summary comments were also provided by the SSEB.
The source selection authority (SSA) also performed an independent analysis. The SSA removed the original weakness assessed to NetImpact. The GAO recommended the SSA reevaluate quotations under the technical factor, document an evaluation consistent with the solicitation, and prepare a new source selection decision.
Upon reevaluation, the SSA agreed with the strengths and weaknesses assessed by the SSEB, and affirmed the ratings assigned. While agreeing with the assessed weakness identified by the SSEB, the SSA found the weakness was “minor, correctable, and can be addressed at the post award conference.” The SSA further found the inconsistences which resulted in the weakness assessment created no risk to contract performance.
In the SSA’s tradeoff analysis, the SSA noted both offerors received an overall acceptable rating for the technical factor. While the SSA found Immersion had a slight technical advantage, the strengths of Immersion’s proposal do not justify the increased price.
Basis of Protest
Immersion argues the following:
- The agency’s evaluation was unreasonable
- The SSA’s conclusion the inconsistencies were minor and posed no risk to contract performance was unreasonable
- The assignment of an acceptable rating lacks a rational basis
In the solicitation, the agency called for vendors to “demonstrate how their staffing plan supported the proposed technical approach by providing labor categories, experience and skill levels of proposed personnel, labor hours, and a cross walk to the performance work statement (PWS) requirements.” The record established widespread inconsistencies throughout the NetImpact’s staffing plan. There was no meaningful evaluation of these widespread discrepancies.
SSA’s Minimization of Risk to Contract Performance
The agency relied on general assurances by NetImpact that they could provide the services required. However, the solicitation required vendors actually demonstrate how their staffing plan would support the technical approach by providing concrete information. NetImpact’s representation they would provide staff or be “flexible” does not meet these requirements.
The Assignment of an Acceptable Rating
Both offerors were assigned an acceptable rating, and the agency relied on the rating when performing a tradeoff. However, a careful reading of the commentary regarding Immersion’s rating suggests the evaluators may have intended a higher rating. The SSEB stated Immersion “Meets the stated requirements and exceeds in some areas.” The SSEB also states, “There is a high probability of success. . . “ This language, according to the solicitation, is used for an outstanding rating, not an acceptable rating. The record does not provide an explanation for this inconsistency, and thus, there is no basis to conclude whether the agency intended to assign Immersion an acceptable rating or an outstanding rating.
For these reasons, the protest is sustained.