Link: GAO Opinion
Agency: Department of Health and Human Services
Disposition: Protest denied.
1. Protester’s assertions that agency improperly rated its proposal “Marginal” with regard to non-cost/price evaluation factors constitutes mere disagreement with the agency’s judgment and does not provide a basis for sustaining the protest.
2. Protest based on an alleged conflict of interest created by awardee’s proposed use of a subcontractor, who is also the prime contractor in another phase of the program, is denied where the solicitation specifically provides that the subcontractor’s involvement in both phases of the program is not precluded, and agency specifically considered the various tasks contemplated under both program phases and determined that no conflict of interest was created.
General Counsel P.C. Highlight:
SES first protests that the agency’s rating of “Marginal” with regard to SES’s proposal was unreasonable. GAO states that the evaluation of an offeror’s proposal is a matter largely within the agency’s discretion. In reviewing a protest that challenges an agency’s evaluation of proposals, GAO will not reevaluate the proposals but, rather, will examine the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. A protester’s mere disagreement with the agency’s judgment in its determination of the relative merit of competing proposals does not establish that the evaluation was unreasonable.
GAO has reviewed the agency’s evaluation record and finds no basis to question the various assessments. For example, with regard to the evaluation factor, key personnel and staffing plan, the solicitation stated that each proposal would be evaluated as to whether it “provide[d] a clear demonstration that [proposed personnel] are available and dedicated (specify a percentage of time) to this effort.” Notwithstanding this requirement, SES’s proposal failed to disclose the number of full time equivalent personnel (FTEs) on which its proposal was based, disclosed the identities of only a limited number of the personnel on which it intended to rely, and failed to specify any percentage of time that even the identified personnel would be dedicated to perform under this contract.
Similarly, under the evaluation factor, technical understanding, the solicitation provided that proposals would be evaluated as to the offeror’s demonstrated understanding of various specifically identified programs, and “the interrelationship between applications, warehouses/database, reports, and websites components.” The agency concluded that SES’s proposal showed “very little knowledge and technical understanding” with regard to the specifically identified programs and, more generally, failed to demonstrate “appropriate technical knowledge, expertise” with regard to “SOW programs and issues.” Based on a review of the entire record, including the examples discussed above, GAO finds no basis to question the agency’s evaluation of SES’ proposal.
Next, SES protests the award to the awardee on the basis that the terms of the solicitation precluded the phase 2 prime contractor from performing as a subcontactor in phase 1. The responsibility for determining whether a conflict of interest will arise, and to what extent a firm should be excluded from the competition, rests with the contracting agency. Because conflicts may arise in various factual situations, including those not directly addressed in the Federal Acquisition Regulation (FAR), that regulation directs contracting officers to examine each situation individually in assessing whether conflicts exist. Provided an agency gives meaningful and thorough consideration to potential conflicts, GAO will not overturn a determination based on such consideration absent a showing that it is unreasonable.
RFP amendment No. 3 specifically stated: “Any Sub’contractor(s) awarded Phase (I) Business Requirements and Program Management, may be eligib[le] to bid on Phase (II) Infrastructure.” To the extent SES’s protest is based on the assertion that the terms of the solicitation created a per se prohibition on the awardee’s proposed use of its subcontractor as a subcontractor in phase 1, the protest fails to state a valid basis. More generally, SES’s various protest submissions alternatively assert that, even if the solicitation did not create a per se prohibition on the awardee’s reliance on its subcontractor, the agency failed to adequately consider the potential for impaired objectivity conflicts flowing from the specific facts presented here.
In response to SES’s assertions that the agency failed to reasonably consider whether the awardee’s particular proposed use of its subcontractor created impaired objectivity conflicts of interest, GAO sought additional information from the agency regarding the basis for its determination. Specifically, following submission of the agency report, GAO conducted a recorded telephone hearing during which testimony was provided by the contracting officer regarding the basis for determining that the awardee’s proposal of its subcontractor did not create a conflict, as well as for the agency’s issuance of solicitation amendment Nos. 2 and 3; thereafter, the agency submitted declarations from the agency’s technical evaluation panel chair and deputy director of its information systems group further explaining the agency’s actions. Based on GAO’s review of the entire record, GAO does not question the reasonableness of the agency’s determination regarding conflicts. The protest is denied.