Link: GAO Decision
Protestor: NikSoft Systems Corporation
Agency: Department of Justice
Disposition: Protest Sustained.
In a procurement conducted under Federal Supply Schedule procedures, where a statement of work is included, protest that an agency improperly made upward adjustments to the protester’s level of effort as part of its analysis to establish a blanket purchase agreement and to issue an order under it, is sustained where the record provides no basis for the agency’s determination that the protester’s level of effort was insufficient or that the protester’s level of effort should be increased to the same level of effort proposed by the successful vendor.
General Counsel PC Highlight:
NikSoft Systems Corporation protested the establishment of a BPA and placement of an initial “call” or task order to LS3 Incorporated for federal identity, credential, and access management (FICAM) services to support the Office of the Chief Information Officer. The RFQ sought quotations from 10 vendors holding contracts under schedule 70, IT equipment, software, and services, to establish a BPA against which time-and-materials calls would be issued as needed. The RFQ included an SOW for the BPA’s general requirements, and for an initial call that would be awarded concurrently with the BPA.
NikSoft’s protest of the initial award to LS3 was sustained. The GAO found that the record did not show that the agency meaningfully considered NikSoft’s lower price in its selection decision, and because the agency’s evaluation of NikSoft’s past performance was unreasonable and inconsistent with the solicitation. In reevaluating quotations, the agency lowered LS3’s past performance from acceptable to neutral, due to the fact LS3 had only provided 2 past performance references (rather than 3 as required by the RFQ), with the agency obtaining a third reference from PPIRS. The agency maintained NikSoft’s past performance rating. The agency determined that LS3’s total labor hours, although 12 percent lower than the IGE, were sufficient to perform the first call given its technical approach. However, it concluded that NikSoft’s total labor hours were not sufficient, and increased NikSoft’s labor hours to the same level as LS3, resulting in a price increase of over $175,000.
The GAO found that the record provided no basis to support the agency’s determination that NikSoft’s level of effort or labor mix was insufficient to perform the first call, or to support its determination that NikSoft’s level of effort should be increased to the same level of effort proposed by LS3. There was no analysis or explanation in the agency’s price evaluation and source selection decision to support those determinations, which the GAO found particularly problematic given the agency’s recognition that the two vendors had differing approaches to performing the call. Although the GAO acknowledged that the agency was not required to conduct a formal evaluation of the kind typically performed in a negotiated procurement under FAR Part 15, it found the conclusory statements in the record were simply not adequate to demonstrate that the agency had reasonably considered whether NikSoft’s level of effort and labor mix were sufficient to perform the call, or explain the agency’s decision to upwardly adjust NikSoft’s level of effort to that of LS3’s.
A disappointed vendor should always request a debriefing so as to better understand how its quotation was evaluated and to ensure that the quotation was evaluated in accordance with the stated criteria. Although the agency need only have limited documentation of the source selection decision in placing an order under a BPA, there must still be adequate documentation to support the reasonableness of its decision. While merely disagreeing with the agency’s award decision is insufficient to sustain a protest, if there is not adequate support for that decision, the disappointed offeror may have grounds for a protest.