B-310273.2, Sysorex Federal, Inc.--Costs, March 27, 2008
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Reimbursement of costs of filing and pursuing a protest insofar as they relate to challenge to evaluation of proposed handheld license plate reader systems is recommended where a reasonable agency inquiry into initial protest allegations would have shown facts disclosing absence of a defensible legal basis for finding awardee’s solution compliant with the solicitation specifications, but agency delayed taking corrective action until after submission of the agency report.
Sysorex Federal, Inc. requests that we recommend that the firm be reimbursed the costs of filing and pursuing its protest challenging the award of a contract to Perceptics, LLC, under request for proposals (RFP) No. 0407RP66155, issued by the Department of the Interior, GovWorks, on behalf of Customs and Border Protection (CBP), for license plate reader (LPR) systems. Sysorex challenged the evaluation of proposals and conduct of the procurement.
The solicitation provided for award of a primarily fixed‑price,
level-of-effort contract to produce, install, warrant and maintain a minimum of
54 and a maximum of 770 LPR systems at various CBP facilities, primarily
points of entry at U.S. borders. The LPR
systems ensure that all vehicles crossing
Based on its evaluation of the initial proposals received in response to the RFP and oral presentations made by offerors, Interior initially eliminated Sysorex’s proposal from the competition prior to the live test demonstration provided for under the original solicitation. However, the agency subsequently reconsidered its decision and reinstated Sysorex in the competition, amended the solicitation to delete the live test demonstration, and opened discussions with Sysorex, Perceptics, and the other firms whose proposals were included in the competitive range.
Based upon its evaluation of the final proposal revisions (FPR) submitted at the end of discussions, Interior determined that Perceptics’ proposal represented the best value. While Sysorex’s evaluated price ($1,167,705) was significantly lower than Perceptics’ ($3,940,954), Perceptics’ proposal was rated very good for overall technical merit, while Sysorex’s was rated only satisfactory. In this regard, the source selection decision generally indicated that the technology proposed by Sysorex “is not well suited to the environment in which CBP operates,” and specifically observed that Sysorex’s handheld solution “compromises officer safety.” Source Selection Decision at 8. Sysorex’s proposed handheld system was comprised of [REDACTED]. Sysorex FPR at I-10 to I‑11. As the agency made clear in the detailed technical evaluation and in the debriefing subsequently furnished Sysorex after the award to Perceptics, Sysorex’s handheld solution was determined not to work in the intended environment because it would require officers to carry a [REDACTED] in addition to the bullet‑proof vest, gun belt with weapon, additional ammunition clips, baton, handcuffs, and pepper spray officers already carry. FPR Technical Evaluation at 2; Sysorex Debriefing at 3. In contrast, Perceptics proposed as its handheld solution to use a [REDACTED] handheld device that would [REDACTED]. Perceptics FPR at I-15 to I-17.
Upon learning of the award to Perceptics, and after being
debriefed, Sysorex filed a protest with our Office. In its initial protest filings, Sysorex
challenged the award on the basis that Interior had: failed to conduct meaningful discussions;
failed to evaluate price proposals in accordance with the solicitation; treated
the offerors unequally in the technical evaluation; and otherwise failed to
reasonably evaluate a number of sections of its technical proposal, including
key personnel, handheld solution, reading vanity license plates, past
experience and performance, transition plan, network monitoring capabilities,
and approach to addressing changes in state license plate designs. With regard to the agency’s criticism of its
handheld solution, Sysorex asserted that “[t]he requirements of the
solicitation drove the equipment that was required for the handheld
solution. All offerors would be required
to propose a similar suite of equipment to that proposed by Sysorex and the
border officers would use it in a similar fashion.” Sysorex Amended Protest,
In its October 15 report, Interior maintained that it had reasonably evaluated the proposals and requested that we deny Sysorex’s protest in its entirety. Regarding Sysorex’s challenge to the agency’s assessment that Sysorex’s handheld solution would not work in the environment in which CBP officers operate, Interior asserted that:
Sysorex maintains that every offeror had to propose a suite of equipment similar to its own [REDACTED] system, which consists of a [REDACTED]. A review of Perceptics’ technical proposal demonstrates the fallacy of this assertion. Perceptics proposed a true handheld solution, consisting of a [REDACTED] that accomplishes all of the functions of Sysorex’s [REDACTED] “handheld” system. Moreover, Sysorex’s argument indicates its lack of familiarity with the state of the art as represented in the proposals of its competitors.
In its October 22 supplemental protest and October 25 comments on the agency report, Sysorex pointed out that, under the solicitation, all types of LPR systems, including the handheld system, were required to image license plates on vehicles moving at speeds up to 60 miles per hour, with 95 percent accuracy, while handheld LPRs also were required to include a battery with an 8-hour life. SOW sections 126.96.36.199, C.4.4, C.4.6.3. Sysorex noted that, in Perceptics’ handheld solution, CBP officers would carry [REDACTED] as those that Perceptics proposed for its fixed and mobile LPR systems; thus, according to Perceptics’ FPR, “[REDACTED].” Perceptics FPR at I-6 to I-27, IX-2. Sysorex asserted that Perceptics’ handheld PDA solution therefore did not meet the 60 miles per hour with 95 percent accuracy requirement. Sysorex also raised an additional protest allegation regarding Perceptics’ proposed approach to commercial vehicles. Specifically, Sysorex noted that, while the SOW required that each LPR system “transmit the alphanumerics and state/province of origin for each plate on both the front and rear of the commercial vehicle . . . for at least 95% of all commercial vehicles which pass through the lane,” SOW sect. C.4.2, Perceptics’ FPR stated that its system would correctly read both the alphanumerics and state/province of origin “[REDACTED].” Perceptics FPR at I-23. Sysorex argued that this statement fell short of meeting the 95 percent requirement.
On November 1, Interior advised our Office that it had determined to take corrective action in response to the grounds raised in Sysorex’s second, amended protest filed on October 22. Interior stated that it would amend the solicitation, request new FPRs, suspend performance of all but a limited portion of Perceptics’ contract, and, in the event that an offeror other than Perceptics becomes the successful offeror, terminate Perceptics’ contract. (Interior also advised that, as an alternative, it may choose to meet its requirements through a different procurement vehicle.) On November 5, we dismissed Sysorex’s protest as academic (B-310273).
Sysorex now requests that we recommend reimbursement of the costs of filing and pursuing its protest.
Where a procuring agency takes corrective action in response
to a protest, our Office may recommend reimbursement of protest costs where,
based on the circumstances of the case, we determine that the agency unduly
delayed taking corrective action in the face of a clearly meritorious protest,
thereby causing the protester to expend unnecessary time and resources to make
further use of the protest process in order to obtain relief. Bid Protest Regulations, 4 C.F.R. sect. 21.8(e)
Sysorex asserts that reimbursement of its protest costs is warranted here because, in its view, three issues raised in its initial protest‑‑‑unequal evaluation of handheld solutions, misevaluation of cost proposals, and misevaluation of Sysorex’s proposed network monitoring capabilities‑‑‑were clearly meritorious, but the agency nevertheless failed to take corrective action until after the protester had responded to the agency report.
Interior denies that it unduly delayed taking corrective
action in the face of clearly meritorious protest grounds. According to Interior, it determined to take
corrective action based on problems in two areas identified by Sysorex. Specifically, Interior states that Sysorex’s
assertion in its October 22 supplemental protest that Perceptics’ handheld
solution did not fully comply with the solicitation requirements “caused the
agency to question both its earlier evaluation of all offerors’ handheld
solutions as well as the feasibility of the performance requirements . . . for
the handheld LPRs.” Interior Comments,
We agree with Sysorex that its initial challenge to the
evaluation of handheld solutions was clearly meritorious. The agency’s evaluation of proposals was
based in significant measure upon the determination that, while Sysorex’s [REDACTED]
handheld solution “was not well suited to the environment in which CBP
operates” and “compromises officer safety,” Source Selection Decision at 8,
“Perceptics proposed a true handheld solution, consisting of [REDACTED] that
accomplishes all of the functions of Sysorex’s [REDACTED] ‘handheld’
system.” Agency Report,
Interior asserts that it understood that its evaluation
“might have been flawed” only when Sysorex, in its supplemental protest filed
after receipt of a copy of Perceptics’ proposal in the agency report, pointed
out that Perceptics had proposed the [REDACTED], and asserted that this [REDACTED]
could not meet the requirements of the SOW without additional equipment. Interior Comments,
As for the two additional protest grounds cited in Sysorex’s
request for reimbursement, neither was clearly meritorious. In its amended protest filed after its
debriefing and prior to receipt of the agency report, Sysorex, having been
advised that Perceptics’ proposal received a significant strength on account of
the ability to [REDACTED], asserted that the agency had improperly failed to
credit its proposal for a similar capability, for [REDACTED]. Sysorex Amended Protest,
In conclusion, we recommend that Sysorex be reimbursed the reasonable costs of filing and pursuing its protest insofar as they relate to its challenge to the evaluation of proposed handheld solutions. Sysorex should submit its claim for costs, detailing and certifying the time expended and costs incurred, directly to Interior within 60 days of receipt of this decision. 4 C.F.R. 21.8(f)(1).
The request is granted.
Gary L. Kepplinger