Agency: Department of Homeland Security
Disposition: Protest Denied
Decided: April 26, 2021
General Counsel P.C. Highlight:
Protest dismissed where the protester filed a second protest, after the agency took corrective action, with alleging a new basis for protest that the award decision was improper because the awardee did not have certain specific services required by the RFP in its contract. A protest filed in response to the re-awarding of a contract is untimely when the protest is filed later than ten days from when a protester knew or should have known the basis for its protest.
Summary of Facts:
Verizon, of Ashburn, Virginia, protests the awarding of task orders to AT&T, of Oakton, Virginia, for the Department of Homeland Security’s RFP No. 70RTAC20R00000026 for the agency’s Headquarters Core Data (HQCD) requirements. Verizon contends that the agency’s evaluation and award decision to AT&T were flawed.
The agency looked to modernize its information technology services and capabilities in order to improve the department’s network and telecommunications service delivery. To help achieve this goal, the agency developed the HQCD requirements which give the agency the option to acquire now or in the future: a modernized software-defined wide area network (SD-WAN), a managed network service (MNS), and other information technology-based services. The RFP would award four task orders for one base year with eleven 1-year options. The RFP further established that the task order award would be made on a best-value tradeoff basis, based on three evaluation factors: (1) performance management approach, (2) transition and modernization approach, and (3) price. Proposals were required to comply with the terms and conditions found in the General Services Administration (GSA) Enterprise Infrastructure Solutions (EIS) government-wide acquisition contracts.
The agency issued the RFP on June 24, 2020 with a closing date of July 27, 2020 to holders of GSA EIS contracts. On September 28, 2020 the agency initially made the task order award to AT&T. On October 6, 2020, Verizon filed a protest challenging the evaluation and award to AT&T. Verizon also filed a consolidated supplemental protest on October 13, 2020. In this protest, Verizon argued that AT&T was ineligible for award because AT&T did not have all of the RFP’s required access arrangement services in its EIS contract. In response, the agency informed GAO on November 9, 2020 that it planned to take corrective action by terminating the task orders issued to AT&T, reevaluating the proposals, and issuing a new award decision. Verizon’s October 6 protest was dismissed due to the corrective actions taken by the agency.
On January 5, 2021, AT&T was again awarded the task order award. Verizon filed a protest challenging the agency’s reevaluation and subsequent award to AT&T on January 19, 2021. It also filed a supplemental protest on January 21, 2021 alleging, for the first time, that AT&T was ineligible for award because of AT&T’s purported lack of SD-WAN services as part of its EIS contract.
Basis of Protest:
Verizon’s protest makes four main arguments:.
- The offerors did not compete on a fair and equal basis;
- The evaluation of technical proposals was unreasonable and unequal, and if the agency had conducted a reasonable evaluation, Verizon would have received a high confidence rating.
- The agency failed to hold meaningful discussions with Verizon regarding its price and technical proposals.
- AT&T is ineligible for the award because AT&T does not offer SD-WAN services in its EIS contract, which was required by the RFP.
The agency states that all offerors proposed prices using the same price workbooks and the same RFP requirements. It further states that the offerors’ submitted prices were based on each offeror’s independent business judgments regarding the discounts they elected to offer from their EIS contract pricing. Both the agency and AT&T argue that Verizon’s protest is untimely because Verizon knew or should have known of its basis of protest that AT&T did not include SD-WAN services in its EIS contract at the time Verizon filed its original October 6 protest to AT&T’s eligibility for award.
GAO found that Verizon’s claims of improper agency action during evaluation of the proposals were either without merit, failed to alter Verizon’s competitive standing, or were untimely.
Price Evaluation/Common Basis for Competition
GAO first laid out the fundamental principle of government procurement that offerors be treated equally and are provided with a common basis for the preparation of their proposals.
Here, GAO found that Verizon failed to show or identify that any specific part or parts of the RFP were vague, ambiguous, or prevented the offerors from competing on a common basis. GAO found that the agency was not required by the RFP to determine why Verizon’s price was not as low as the other offerors’ prices. Specifically, the RFP’s price evaluation criterion did not require the agency to reconcile the offerors’ divergent prices, and therefore gives no basis to sustain the protest on Verizon’s side.
Technical Evaluation of Verizon
GAO stated that when reviewing protests of an award in a task order competition, GAO examines the record to determine whether the evaluation and source selection decisions are reasonable and consistent with the solicitation’s evaluation criteria and applicable procurement laws and regulations.
GAO found that it did not need to decide the merit of Verizon’s technical evaluation challenges because Verizon failed to demonstrate that it was competitively prejudiced by the agency’s MNS requirement. GAO stated that it will sustain a protest where the protester demonstrates that, but for the agency’s improper actions, the protester would have had a substantial chance of receiving the award. When the record establishes no reasonable possibility of prejudice to the protester, GAO stated that it will not sustain a protest, irrespective of whether a defect in the procurement is found. Here, the record showed that AT&T was found to be higher rated technically and lower-priced than Verizon and was also technically superior to the other offerors because of the many benefits in its proposal.
Further, GAO found that even if Verizon’s technical challenges were supported by the record, Verizon was still twice as expensive as AT&T’s proposal, which made AT&T more likely to receive the award.
Adequacy of Discussions
In a task order procurement, GAO said that the discussions between an agency and offeror must be meaningful by pointing the offeror to the areas of its proposal that require clarification or amplification. The precise content of the discussions is a matter for the contracting officer’s judgment. GAO stated that a contracting officer is not required to discuss every area where the proposal could be improved in order for the discussions to be meaningful.
GAO found the agency’s discussions with Verizon were meaningful by directing Verizon to the price of its proposal which due to its high value caused the agency some concern. This direction by the agency allowed Verizon to amplify or correct its price in order to enhance Verizon’s chances of receiving the award, if Verizon deemed that correcting the price was in its best interests. Verizon did respond to this concern by lowering its price to the monetary amount in its final proposal.
GAO concluded by stating that the agency was not required to disclose the disparity between offerors’ prices in order for the discussions to be meaningful.
Timeliness of Verizon’s Protest of AT&T’s Eligibility for Award
GAO outlined its Bid Protest Regulations’ rules dictating the timely submission of protests. It highlighted that a protest based on other than alleged improprieties in a solicitation must be filed no later than 10 days after the protester knew or should have known of the basis for the protest. In a case where a protest is brought after corrective action is taken by the agency and the contract is re-awarded, GAO stated that protest grounds are untimely when the information underpinning the grounds was available to the protester as part of its earlier protest, and the protester failed to raise these grounds in a timely manner in the earlier protest. GAO stated that it will not consider arguments that could and should have been raised in prior protests.
GAO found that Verizon knew or should have known of its basis of protest for AT&T’s eligibility, that AT&T lacked the SD-WAN services required by the RFP, when it previously challenged AT&T’s award eligibility because this information was available to Verizon as part of its earlier protest. Because Verizon did not challenge AT&T’s award eligibility for lack of SD-WAN services until January 21, 2021, more than 10 days after it knew or should have known of its basis of protest back in October 2020, GAO found its protest to be untimely.