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Thursday, July 9, 2015

Incumbency as a double edged sword

Aha, aha, mmm, hmm, mmm, hmm
Gonna get along without you now
Aha, aha, mmm, hmm, mmm, hmm
Gonna get along without you now

Got along without you before I met you
Gonna get along without you now
Gonna find somebody that's as twice as cute
'Cause I didn't like you anyhow

--- Popularized by Patience and Prudence, lyrics by MetroLyrics

This is a decision of the GAO. It involved the eventually unsuccessful protest of a best value award of a contract to provide security-rated linguists. It was noted in the RFP that the grant of security status was not under the control of the using agency, and experience in passing though that minefield, and managing the flow of applicants through the process, would be essential.

The protester is "SIG", the incumbent under the existing contract. The award was made to "CWU". As usual, this is not a complete or necessarily accurate rendition of the decision and you are most encouraged to read the original at the link below rather than rely on the presentation here. There are other interesting comments and issues in the decision not here presented.

Matter of: Strategic Intelligence Group, LLC, B-410881.3, June 23, 2015
The RFP provided for award on a best-value basis, considering the following factors (in descending order of importance): (1) technical, including subfactors for technical approach and management approach; (2) past performance; and (3) cost/price.

The final evaluation matrix looked like this:

In comparing the proposals, the SSA ("source selection authority") noted that SIG’s proposal was the second highest-priced proposal and one of the lowest-rated proposals, while CWU’s and another offeror’s proposals were both higher-rated and lower-priced than SIG’s.  The SSA selected CWU’s proposal for award, noting with respect to SIG’s proposal that “it would not be in the best interest of the Government to justify paying a higher price [for SIG’s proposal] than proposals that were rated as OUTSTANDING and are lower priced.”

With regard to past performance, the solicitation specified that the agency would assign a performance confidence assessment based on the relevancy and quality of offerors’ performance on recent efforts.

CWU’s proposal was rated overall outstanding under the technical factor based upon an outstanding rating under the technical approach subfactor and a good rating under the management approach subfactor. CWU’s outstanding technical approach rating was based on several evaluated strengths. The SSA concluded that CWU's“[e]xceeding the minimum requirements to facilitate security processing identifies a level of preparedness to ensure successful transition and to maintain a higher pipeline capacity.”

In contrast, SIG’s proposal received only a single strength under the technical approach subfactor, based on SIG’s approach to transition (that is, start-up and continuity of services in transition from an existing contract to the new contract). Specifically, the SSA noted that, since SIG is the incumbent contractor, transition would involve minimal phase-in activities. Thus, SIG’s proposal was rated only acceptable under the technical factor overall.

SIG challenges the agency’s evaluation under each of the evaluation factors, and argues that the resulting selection decision was unreasonable because it was based on a flawed evaluation. In reviewing protests challenging an agency’s evaluation of proposals, our Office does not independently evaluate proposals; rather, we review the agency’s evaluation to ensure that it is consistent with the terms of the solicitation and applicable statutes and regulations. In this regard, the evaluation of proposals is a matter within the discretion of the procuring agency; we will question the agency’s evaluation only where the record shows that the evaluation does not have a reasonable basis or is inconsistent with the RFP. Here, we find the evaluation and source selection decision to be reasonable.

As an initial matter, SIG challenges the agency’s equal rating of both SIG’s and CWU’s past performance as satisfactory confidence, asserting that the past performance evaluation was unreasonable and failed to recognize differences in the offerors’ past performance. Our Office will examine an agency’s evaluation of an offeror’s past performance only to ensure that it was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations, since determining the relative merit of an offeror’s past performance is primarily a matter within the agency’s discretion. While an agency may provide for an evaluation of relevance, the agency is not required to evaluate the past performance of the incumbent contractor as superior to its competitors simply because the incumbent has the most relevant past performance.

Here, we find the agency’s past performance evaluation to be reasonable. Of the several contracts cited by SIG for proof of its past performance, only the incumbent contract was rated as relevant, because of the gross difference between the price (well over $100 million) of the new contract compared to the other proposed contracts. And, in considering the past performance of the incumbent contract, it was noted that the performance was less than stellar. For example, when asked whether SIG satisfied performance requirements, the reviewer stated:
Overall, I find this vendor’s performance acceptable. That said, as discussed below there were, are, and continue to be both cost and schedule concerns associated with executing this effort, however at this time they have not risen to the level of unacceptability.
Likewise, in the area of meeting required performance schedules, the reviewer stated as follows:
Rated overall acceptable, however this vendor is on the low end of the scale [with regard to] fulfilling all CME [Contract Manpower Equivalent] requirements under this task order. The government did issue the vendor a letter of concern to ensure an acceptable number of candidates was routinely submitted for government consideration. That said, the untimely nature of government security vetting processes continues to be a major impediment to vendor success
Similarly, when asked whether SIG stayed within cost estimates, the reviewer stated:
Rated overall acceptable, however this vendor is on the low end of the scale [with regard to] cost performance under this firm fixed price contract. While the government arguably neglected to articulate a number of issues in the solicitation that ultimately required an equitable adjustment, at the same time, the government was forced to take action (above and beyond the equitable adjustment issues) to facilitate the vendor’s ability to maintain their current level of performance (see schedule above) by providing increased contract reimbursable compensation to their employees. One could argue that the vendor proposed less than market competitive compensation rates to win the solicitation.
SIG does not challenge the agency’s conclusion that its performance under the “very relevant” incumbent contract merited a rating of satisfactory confidence.

With regard to the disregard of the other proposed contracts, deemed to be less than relevant, even if the agency erred in its evaluation of SIG’s non-incumbent contracts, there is no basis to question the agency’s overall rating of SIG’s past performance as satisfactory confidence given SIG’s performance problems on its “very relevant” incumbent linguist contract.

In any case, prejudice is an essential element of every viable protest, and we will not sustain a protest when it is clear from the record that a protester has suffered no prejudice as a result of an agency evaluation error.

SIG also challenges the agency’s evaluation under the technical factor, which included an evaluation "to determine the extent to which successful performance is contingent upon proven devices and techniques.

SIG complains that the agency unreasonably failed to assign a strength to SIG’s technical proposal as a result of its experience as the incumbent contractor. Specifically, SIG contends that it deserved a strength due to its “well-developed process and procedures for recruiting, qualifying, and retaining linguists,” that were developed through its incumbency. SIG further argues that the agency erred by failing to recognize that the firm is “uniquely positioned” as the incumbent to process linguists using an approach the firm developed under the incumbent contract, and that SIG’s “significant experience” as an incumbent indicated a better understanding of the recruitment and approval cycle. The protester also contends that the agency engaged in unequal treatment by assigning a strength to CWU’s proposal for its “robust pipeline” of qualified linguist candidates while ignoring the fact that SIG already has many of the needed linguists vetted and in place due to its incumbency.

SIG’s arguments are without merit. As noted, the evaluation was to include consideration of whether offerors had proposed “proven devices and techniques.” The record reflects that SIG has struggled to meet the requirements of the incumbent contract, thus belying the claim in its proposal that “our current pipeline . . . along with continued recruiting efforts, is sufficient to meet the . . . levels required.”  For example, SIG’s technical proposal acknowledged that, under SIG’s incumbent contract, there are currently unfilled category III linguist positions.   Given SIG’s acknowledged, significant shortfall in satisfying the linguist requirements under its incumbent contract, we find that the agency reasonably concluded that SIG’s proposed approach, based on its incumbent contract, did not exceed the solicitation’s requirements so as to warrant the assignment of a strength.

In contrast, the evaluators found that CWU’s proposal provided “very detailed information” demonstrating its ability to meet the solicitation’s requirement to provide the required number of linguists. For example, CWU’s proposal indicated that the firm already has linguists that have been security vetted and would be available to perform under the contract. The evaluators also noted that the awardee’s proposal indicated that CWU’s pipeline of linguists contains hundreds of linguists who previously held or currently hold security clearance. In addition, CWU’s proposal stated that the firm anticipated hiring some of the incumbent workforce. In these circumstances, we find that the agency reasonably concluded that, although CWU is not the incumbent, its proposal exceeded the solicitation’s requirements for filling the linguist positions required under this contract.

Next, SIG challenges the agency’s decision to assign equal strengths to both SIG and CWU in evaluating offerors’ transition risk. In this regard, SIG contends that its proposal was superior because only SIG, as the incumbent, could offer a "no-risk" transition. The protester contends that the agency’s assignment of a strength to CWU’s proposal for offering a low risk transition essentially and unreasonably treated SIG’s transition risk as equivalent to CWU’s transition risk.

Evaluation ratings and the number of strengths and weaknesses assessed are merely a guide to, and not a substitute for, intelligent decision making in the procurement process.   The relevant question is whether the record shows that the agency fully considered the actual qualitative differences in vendors’ proposals.

Here, the record provides no support for the protester’s challenge to the agency’s assessment of strengths for both offerors’ transition approaches. First, the evaluation report and selection decision show that the evaluators and the SSA were aware of, and acknowledged, the differences in the offerors’ proposals with regard to transition. Specifically, with regard to SIG, the evaluators acknowledged that as the incumbent, it would have minimal transition risk, which SIG described as a “no risk” solution. With regard to CWU, the agency concluded that CWU’s detailed proposals increased the likelihood of an early transition without any degradation of service, thereby exceeding the solicitation requirements such as to merit a strength. While SIG may disagree with the agency’s assessment that this proposed approach to transition merited a strength, the protester has failed to demonstrate that the agency’s evaluation in this regard was unreasonable or inconsistent with the record.

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