TENICA and Associates, LLC; TEK Source USA, Inc.; Dynamic Systems Technology, Inc.

B-411173.10,B-411173.11,B-411173.12,B-411173.13: Mar 2, 2016

Additional Materials:

Contact:

Ralph O. White
(202) 512-8278
WhiteRO@gao.gov

Kenneth E. Patton
(202) 512-8205
PattonK@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TENICA & Associates, LLC, of Alexandria, Virginia; Dynamic Systems Technology, Inc. (DysTech), of Fairfax, Virginia; and TEK Source USA, Inc., of Tampa, Florida; protest the award of a contract to Interactive Government Holdings, Inc. (IGH), of Washington, D.C., by the Defense Human Resources Activity (DHRA) under request for proposals (RFP) No. H98210-15-C-0011 for program support services. The protesters challenge various aspects of the agency's evaluation of proposals and the source selection decision.

We deny the protests.

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.

Decision

Matter of:  TENICA and Associates, LLC; TEK Source USA, Inc.; Dynamic Systems Technology, Inc.

File:  B-411173.10; B-411173.11; B-411173.12; B-411173.13

Date:  March 2, 2016

James S. DelSordo, Esq., Julie M. Nichols, Esq., and James S. Phillips, Esq., Argus Legal, PLLC, for TENICA & Associates, LLC, and for Dynamic Systems Technology, Inc.; and Antonio R. Franco, Esq., Michelle E. Littleken, Esq., Kathryn V. Flood, Esq., and Jacqueline K. Unger, Esq., PilieroMazza PLLC, for TEK Source USA, Inc., the protesters.
David E. Fletcher, Esq., Christopher J. Kimball, Esq., Erin M. Estevez, Esq., and Thomas O. Mason, Esq., Cooley LLP, for Interactive Government Holdings, Inc.,
the intervenor.
William C. Moorhouse Esq., and Hattie R. DuBois, Esq., Department of Defense, Defense Human Resources Activity, for the agency.
Robert T. Wu, Esq., and Tania Calhoun, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protests that the agency unreasonably evaluated the technical and past performance proposals of the protesters are denied where the record shows that the evaluation is reasonable and consistent with the solicitation’s evaluation criteria; protester is not an interested party to challenge the evaluation of awardee’s proposal where the record shows other offerors, not protester, would be in line for award if protester’s challenges were sustained, and protester does not challenge the evaluation of the other firms’ proposals.

DECISION

TENICA & Associates, LLC, of Alexandria, Virginia; Dynamic Systems Technology, Inc. (DysTech), of Fairfax, Virginia; and TEK Source USA, Inc., of Tampa, Florida; protest the award of a contract to Interactive Government Holdings, Inc. (IGH), of Washington, D.C., by the Defense Human Resources Activity (DHRA) under request for proposals (RFP) No. H98210-15-C-0011 for program support services.  The protesters challenge various aspects of the agency’s evaluation of proposals and the source selection decision.

We deny the protests.

BACKGROUND

The agency’s Family and Employer Programs and Policy (FEPP) mission requires support services nationwide to three major components:  Employer Support of the Guard and Reserve (ESGR), the Yellow Ribbon Reintegration Program (YRRP), and the Employment Initiative Program (EIP).  RFP Performance Work Statement (PWS) ¶ 1.0.  The contractor is to provide all personnel management, materials and equipment necessary to provide the FEPP and its major components with program administrative, logistical, and technical support and subject matter expert services.  Id. at ¶ 3.0.  The PWS describes numerous specific tasks for which the contractor will be responsible and staff positions to be provided.

The RFP, issued on October 9, 2014, as a small business set-aside, contemplated award of a fixed-price contract for a 1-year base period and two 1-year option periods.  Award was to be made to the offeror whose proposal was most advantageous to the government, considering three factors in descending order of importance:  technical, past performance, and price.  RFP at 71.  The technical and past performance factors, when combined, were significantly more important than price, which was to be evaluated for reasonableness.  Id.

The technical factor included three equally-weighted subfactors:  technical approach and methodology, project management plan, and quality control plan.  Id. at 70-71.  The agency was to assign adjectival ratings of outstanding, acceptable, marginal, or unacceptable to the technical proposals.  Id. at 71-72.

The past performance factor required the agency to assess the offeror’s probability of meeting the solicitation requirements based on past performance information.  RFP at 70.  A performance confidence assessment rating was to focus on performance that was relevant to the technical factors and cost or price.[1]  Id.  In this regard, the RFP stated that information regarding contract performance that was recent and had “a logical connection with the matter under consideration indicates relevancy.”  Id.  Past performance references were to be assigned a relevancy rating of very relevant, relevant, somewhat relevant and not relevant.  Id. at 72.  These ratings were defined in terms of magnitude of effort and complexities compared to the current solicitation.  For instance, the rating of somewhat relevant was defined as “[p]resent/past performance effort involved some of the magnitude of effort and complexities this solicitation requires.”  Id.

On April 1, 2015, DHRA awarded the contract to IGH, and several firms filed protests in our Office.  We sustained the protests on July 20, finding that the evaluation of proposals was unreasonable, inconsistent with the solicitation’s terms, and that the agency failed to make a reasoned comparison of proposals or articulate why the award was reasonable.  Metis Solutions, LLC et al., B-411173.2 et al., July 20, 2015, 2015 CPD ¶ 221.  We recommended that DHRA reevaluate proposals and make a new source selection decision in a manner consistent with our decision.  Id. at 17.  The agency reevaluated proposals with the following relevant results:

 

Technical

Past Performance

Price

IGH

Outstanding

Satisfactory Confidence

$48,899,509

TENICA

Acceptable

Satisfactory Confidence

$41,078,832

TEK Source

Acceptable

Satisfactory Confidence

$40,340,081

DysTech

Acceptable

Satisfactory Confidence

$38,168,375


Agency Report[2] (AR), exh. 25, Award Rationale, at 45. 

IGH’s technical proposal was evaluated as having five strengths and no weaknesses, and its three past performance references were considered somewhat relevant.  Id. at 4-5, 25.  DysTech’s technical proposal was evaluated as having two strengths and no weaknesses; three of its past performance references were considered somewhat relevant and the fourth was considered relevant.  Id. at 6-7, 27.  The technical proposals of TENICA and TEK Source were each evaluated as having one strength and four weaknesses.  Three of TENICA’s past performance references were considered somewhat relevant and two were considered not relevant, and all five of TEK Source’s references were considered somewhat relevant.  Id. at 8-9, 29, 30.

The source selection authority (SSA) made a new award decision, again selecting IGH as the awardee.  AR, exh. 26, Source Selection Decision Document (SSDD), at 5-6.  She reviewed the detailed award rationale document; discussed its findings with the contracting officer, contract specialist, and source selection evaluation board (SSEB) chair; and made her own independent assessment.  Id. at 1.  She reviewed the evaluated strengths and weaknesses of the proposals with acceptable technical ratings, which included those of each protester, and concluded that they all submitted “equally acceptable technical proposals.”  Id. at 3.  She concurred with the SSEB’s finding that IGH’s technical proposal was outstanding, noting that it:

contained no weaknesses and offered a creative and innovative approach to this requirement.  IGH’s proposal reflected a broad understanding of the requirement, and its strengths were evident along the program’s continuum. . . .  Each of IGH’s strengths will have beneficial effects across the FEPP program compared to the narrow focus of positive qualities presented by the other offerors.  IGH’s Outstanding proposal is technically superior to other others and merits a price premium for the value received by the government.

Id. at 3-4.

The SSA also found that the past performance confidence assessments were supported by the underlying data and concluded that, “the impact of the Past Performance factor on the overall ratings fades, or is neutralized, meaning Past Performance does not enhance or detract from the technical rating.”  Id. at 4. 

After considering the merits of the proposals, the fact that the technical factor was the most important factor, and the importance of successful performance of the programs to provide employment services to Guard and Reserve members, the SSA found that IGH’s superior proposal warranted a price premium, “particularly when IGH’s proposal is the sole technically superior proposal, and so greatly exceeded all of the acceptably rated proposals.”  Id. at 5.  After the award decision was made, the agency conducted debriefings and these protests followed.

DISCUSSION

All three protests challenge various aspects of the agency’s evaluation of proposals and award decision.  TEK Source protests the evaluation of both its own and IGH’s technical and past performance proposals and the tradeoff decision.  Both TENICA and DysTech protest the evaluation of their own technical and past performance proposals, the evaluation of IGH’s past performance, and the tradeoff decision.  We have considered the entire record, including testimony taken at a hearing, and deny the protests. 

Technical Evaluation

The evaluation of technical proposals is a matter within the discretion of the contracting agency, since the agency is responsible for defining its needs and the best method for accommodating them.  Visual Connections LLC, B-407625, Dec. 31, 2012, 2013 CPD ¶ 18 at 3.  In reviewing an agency’s evaluation, we will not reevaluate technical proposals, but instead will examine the agency’s evaluation to ensure that it was reasonable and consistent with the solicitation’s stated evaluation criteria and with procurement statutes and regulations.  CEdge Software Consultants LLC, B-408203, July 19, 2013, 2013 CPD ¶ 177 at 4.  We begin with the protest filed by TEK Source.

TEK Source Evaluation

TEK Source protests the evaluation of its own technical proposal and that of the awardee.  The firm argues that the agency unreasonably failed to assign its proposal three strengths, and challenges its four weaknesses arguing, in part, that the agency treated its proposal and that of IGH disparately. 

We turn first to TEK Source’s argument that the agency unreasonably failed to recognize three strengths in its proposal--its innovative management approach, quality control plan (QCP) and after action review (AAR) process.  We have reviewed each allegation and find each to be without merit. 

TEK Source contends that the agency should have recognized the strength of its innovative [DELETED] approach to management, including its [DELETED] management structure and support network.  The agency counters that this approach simply met the RFP’s standards.  While the RFP does not specifically require use of a [DELETED] approach to management, a review of IGH’s proposal shows that it proposed a similar [DELETED] management approach and was not assessed a strength, supporting the agency’s position.  AR, exh. 15, IGH Proposal at 4.  Moreover, even if we were to conclude that a [DELETED] management approach exceeded the RFP’s requirements, since both firms proposed similar approaches we cannot find that the protester was prejudiced.

TEK Source next argues that the agency unreasonably failed to assign its proposal a strength for its proposed QCP process because, the protester contends, the resulting QCP was innovative, comprehensive, and exceeded requirements.  The firm also argues that its proposed AAR process warranted a strength because it developed a way to make it more useful by incorporating [DELETED] and [DELETED] into the reports.  Finally, TEK Source argues that the agency unreasonably failed to recognize the strength of its proposed use of the QCP and AAR processes to provide continuous program improvement, but recognized IGH’s proposed processes to provide continuous improvement. 

The agency responds that the firm’s QCP and AAR processes did not warrant strengths because they simply met the RFP’s requirements.  With respect to IGH’s proposed processes to provide continuous improvement, the agency identified a qualitative difference between the two proposals, specifically, that IGH proposed multiple process improvement techniques, whereas TEK Source proposed use of only one.  AR, exh. 33, Technical Evaluation Board (TEB) Memorandum at 2-3.

The contractor was required to provide AARs upon completion of an FEPP activity or event.  PWS ¶ 5.3.  Offerors were required to propose a QCP to ensure work performed conforms to the scope of work and various standards, and to provide a method for identifying and correcting problems and preventing defective service.  PWS ¶ 12.0.  The contractor also was required to provide input and recommendation for program improvement of the assigned areas of the program to ensure compliance with program policies and guidance.  PWS ¶ 4.7.

Our review of the record confirms TEK Source’s position that it proposed to meet the continuous improvement requirement through its QCP and AAR processes.  AR, exh. 12, TEK Source Proposal, at 10, 30.  However, while the firm’s processes may have exceeded what was required by PWS ¶¶ 5.3 and 12.0, it is apparent that, to the extent they do, it was to meet the requirements of PWS ¶ 4.7.  Thus, taken as a whole, the proposal does not exceed the RFP’s requirements.  Moreover, the agency has articulated a reasonable basis for why IGH’s continuous improvement processes warranted a strength, while TEK Source’s process did not.

TEK Source’s next arguments concern two weaknesses assigned to its proposal that relate to what it refers to as clerical errors or erroneous references within its proposal.  The firm essentially argues that the weaknesses were unreasonable because the agency should have known from the context of its proposal that they were errors and the information presented met the RFP’s requirements.  However, the firm does not dispute the purported errors, and we have no basis to find unreasonable the agency’s conclusions that these errors were weaknesses. 

TEK Source’s remaining arguments concern the technical approach and methodology subfactor.  Under this subfactor, offerors were instructed that, “by addressing each portion of the PWS, proposals shall describe” their understanding of the requirement, assessment of the objectives to be accomplished, and methodology for accomplishing the requirement.  RFP at 70.  TEK Source alleges that its proposal was improperly assigned two weaknesses for failing to address certain aspects of PWS ¶ 4.21, but that IGH’s proposal was not assigned weaknesses for failing to address the same requirements and numerous other requirements under the PWS paragraph.

Paragraph 4.21 of the PWS required offerors to “[p]rovide qualified personnel” for five different positions, including program support technicians (PST) and reserve component coordinators (RCC).  Various PWS subsections under each position set forth a number of responsibilities for each position. 

TEK Source’s proposal was assigned a weakness because it failed to acknowledge the PWS requirement for daily interaction of the RCC with the Service Yellow Ribbon Program Managers (YRPM).  The agency was concerned that without this daily interaction optimal communication would not be leveraged between the RCC and Service YRPMs.  AR, exh. 25, Award Rationale, at 9-10.  The firm’s proposal was assigned a second weakness because it failed to demonstrate how the subtasks for the PSTs set forth in PWS ¶¶ 4.21.1.17 and 4.21.1.23-25 would be accomplished in support of the Employment Initiative Program/Hero 2 Hired requirements.[3]  Id. at 9.

Our review of the record shows that the agency correctly concluded that TEK Source’s proposal does not discuss these specific responsibilities set forth in the cited PWS paragraphs.  As a result, we have no basis to question the weaknesses assigned given that, “by addressing each portion of the PWS,” proposals were to describe the offeror’s understanding of the requirement, assessment of the objectives to be accomplished, and methodology for accomplishing the requirement.  RFP at 70.  As for TEK Source’s arguments that IGH’s proposal also failed to discuss these specific responsibilities--and numerous other PWS requirements--we find that the protester is not an interested party to protest the evaluation of, and award to, IGH because it would not be next in line for award of the contract even if the award to IGH were set aside.

In order for a protest to be considered by our Office, a protester must be an interested party, which means that it must have a direct economic interest in the resolution of a protest issue.  4 C.F.R. § 21.0(a); Cattlemen’s Meat Co., B-296616, Aug. 30, 2005, 2005 CPD ¶ 167 at 2 n.1.  A protester is an interested party to challenge the evaluation of the awardee’s proposal where there is a reasonable possibility that its proposal would be in line for award if the protest were sustained.  Alutiiq Global Solutions, B-299088, B-299088.2, Feb. 6, 2007, 2007 CPD ¶ 34 at 9

The record clearly reflects that the SSA considered the proposals of TEK Source, TENICA, DysTech, and two other offerors to be technically equal, finding that their weaknesses “all create a similar overall effect in terms of demonstrating their lack of understanding,” and none of their strengths “make a meaningful difference to elevate one offer [over] the others.”  AR, exh. 26, SSDD at 3.  In addition, as discussed below, we have no basis to question the results of the past performance evaluation or the SSA’s conclusion that the impact of past performance was “neutralized.”  Id.  Moreover, the proposals of both DysTech and another offeror were lower-priced than that of IGH, and lower-priced than TEK Source.  Id. at 5.

Where, as here, there are intervening offerors that would be in line for award ahead of TEK Source if its challenge to the award to IGH were sustained, we consider TEK Source’s interest to be too remote to qualify it as an interested party.  Alutiiq Global Solutions, supra at 10.

TENICA Evaluation

TENICA’s challenges to the weaknesses assigned to its own technical proposal are based primarily on its argument that the solicitation did not require offerors to describe how they would accomplish the solicitation’s requirements. 

As discussed above, however, the solicitation requires that, “by addressing each portion of the PWS,” proposals were to describe the offeror’s understanding of the requirement, assessment of the objectives to be accomplished, “and methodology for accomplishing the requirement.”  RFP at 70.  As a result, TENICA’s challenges to the evaluation of its own technical proposal are based on a faulty premise about the solicitation’s requirements, which provides us no basis to question the weaknesses assigned to its proposal.

DysTech Evaluation

DysTech’s sole allegation is that, since its proposal was assigned two strengths and no weaknesses, it should have been rated outstanding instead of acceptable. 

However, the essence of an agency’s evaluation is reflected in the evaluation record itself, not the adjectival ratings.  Harris Patriot Healthcare Solutions, LLC, B‑408737, Nov. 21, 2013, 2014 CPD ¶ 5 at 5.  Moreover, an outstanding rating was reserved for proposals that “exceeded stated requirements, as reflected through an innovative, comprehensive, outstanding approach.”  RFP at 71.  DysTech has not shown that its proposal met this standard.  On the contrary, the SSA found that, while its proposal received no weaknesses, its strengths were “limited to the training of the Employment Coordinators,” and concluded that its technical proposal was “equally acceptable” as those of other proposals rated acceptable.  AR, exh. 26, SSDD at 3.  We are provided no basis to question the evaluation in this regard. 

Past Performance

The protesters challenge aspects of their own past performance evaluations and the evaluation of IGH’s past performance.  As discussed more fully below, our review of the record, including testimony taken at a hearing, affords us no basis to object to the past performance evaluations.

Our Office examines an agency’s evaluation of past performance to ensure that it was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations; however, the necessary determinations regarding the relative merits of offerors’ proposals are primarily matters within the contracting agency’s discretion.  Advanced Envtl. Solutions, Inc., B-401654, Oct. 27, 2009, 2010 CPD ¶ 7 at 5. Our Office will not question an agency’s determinations absent evidence that those determinations are unreasonable or contrary to the stated evaluation criteria.  Id.

For each reference, offerors were to submit a questionnaire that described the contract’s dollar value, period of performance, scope of work and complexity/diversity of tasks performed, skills/expertise required, and relevancy of work.  RFP Attch. B, Past Performance Relevancy Questionnaire.  In this regard, the RFP stated that information regarding contract performance that was recent and had “a logical connection with the matter under consideration indicates relevancy.”  RFP at 70.  The relevancy ratings were defined in terms of magnitude of effort and complexity; the somewhat relevant rating meant that the effort involved “some of the magnitude of effort and complexities this solicitation requires.”  Id. at 72-73.  A performance confidence assessment rating was to focus on performance that was relevant to the technical factors and cost or price.  Id. at 70.

TEK Source Evaluation

TEK Source submitted five past performance references,[4] each was evaluated as somewhat relevant.  AR, exh. 25, Award Rationale, at 29.  The protester argues that all of its references should have been considered relevant, and that it should have received a substantial confidence rating.  TEK Source also points to various purported inconsistencies in the record pertaining to its evaluation.[5]

Our review of the record gives us no basis to question the evaluation of the firm’s references as somewhat relevant.  All of the contracts were significantly smaller in magnitude than the FEPP requirement, and a review of the agency’s evaluation of the FEPP requirements against TEK Source’s own proposal supports the ratings. 

For example, one reference was a contract to provide the Navy global business support, including administrative support services, instructional and training services, financial management, and general services and support.  AR, exh. 12, TEK Source Proposal at 24. The agency considered the contract somewhat relevant because its focus was to provide general administrative and financial services.  The agency stated that the reference also indicated they would provide education counselor and specialist support services, but found these “remotely applicable” to the FEPP requirements.  AR, exh. 25, Award Rationale, at 29.

Citing several PWS paragraphs, TEK Source argues that these services directly relate to the FEPP requirements because they include data analysis, financial analysis applicable to spending plan development, and an ability to recruit and manage staff.  However, none of this is mentioned in the section of TEK Source’s proposal where it was required to explain why its performance on this contract was relevant.  AR, exh. 12, TEK Source Proposal, at 25.  The agency nonetheless evaluated the reference as somewhat relevant.[6]  While TEK Source is correct that its proposal also discusses tracking training attendance and event coordination services, since these only address limited portions of the FEPP requirements we are not persuaded that the somewhat relevant rating was unreasonable.

Another example was a contract to provide military family life counseling.  The firm’s proposal described this contract as recruiting, retaining, training, and maintaining a network of counselors to assist service members and their families in dealing with deployments, effects of war, relationships, crisis intervention, stress management, and family issues.  AR, exh. 12, TEK Source Proposal, at 28.

The agency considered the reference somewhat relevant because it placed emphasis on recruiting, training, and retaining staff, but the work described was “categorically different” even though it was in support of service members and their families.  AR, exh. 25, Award Rationale, at 29.  The agency explained that the reference focused on mental health aspects and financial well-being which was tangential to the scope of the FEPP requirement.  The agency noted that sub-elements of the reference were similar to the YRRP portion of the requirement, a minimal part of the overall FEPP requirement.  Id.

TEK Source argues that the agency improperly downplayed the similarities between its reference and the FEPP requirement when it found that the YRRP activities were a minimal part of the overall FEPP requirement.  However, our review of the PWS requirement confirms that these activities are but one aspect of the requirements, and we have no basis to question the agency’s evaluation which did, in fact, credit the firm for these activities. 

We have also considered the alleged inconsistencies in the record, and find no basis to question the agency’s evaluation.  For instance, TEK Source alleges that one “glaring” error is that the agency downgraded its rating from substantial confidence in the past performance evaluation report to satisfactory confidence in the final award rationale.  TEK Source Comments at 28.  However, at the hearing the contract specialist testified that the reason for the downgrade was that the contracting officer disagreed with the SSEB’s assessment of the relevance of one of TEK Source’s references.  Hearing Transcript (Tr.) 143:13-145:4.  This explanation is consistent with the written record and we have no basis to question the ultimate evaluation finding. 

TENICA Evaluation

TENICA also submitted five past performance references.[7]  Three were evaluated as somewhat relevant and two as not relevant.  AR, exh. 25, Award Rationale, at 30.  One contract considered not relevant was for a Department of Veterans Affairs National Guard and Reserve Study described as a review across the reserve components to provide a historical perspective with regard to the disposition of Service Treatment Records, military personnel records, deployed medical records and documentation required to submit a claim.  AR, exh. 12, TENICA Proposal, at 33.  The proposal described the relevancy of this work as showing TENICA’s capability to provide professional staffing support and subject matter expertise in veteran benefits and claims development.  Id.

The agency considered this contract not relevant because its focus was the disposition of Service Treatment Records and other records for the purpose of submitting claims, and none of these activities were related to the FEPP requirement.  AR, exh. 25, Award Rationale, at 30.  The agency also found that its magnitude in dollar value was less than the FEPP requirement.  Id.

TENICA argues that the rating is “specious” because the management and disposition or proper filing of government documents is relevant to certain PWS requirements.  TENICA Comments at 7.  The firm also contends that the “downgrade” of the contract as being smaller than the FEPP contract evidences a double standard because two of IGH’s contracts were much smaller but were still rated somewhat relevant.  Id. at 7-8.  Neither of TENICA’s arguments has merit.

TENICA’s proposal did not include the management and disposition of government documents in the section of its reference that required offerors to describe why the reference was relevant.  AR, exh. 12, TENICA Proposal at 34.  Moreover, the PWS requirements to which TENICA refers involve ensuring attendance and completion of training for FEPP support staff and tracking compliance with training, not the management and disposition of government documents.  Finally, and as discussed below, TENICA’s claim of a double standard overlooks the fact that its contract was considered not relevant because its tasks were not related to the FEPP requirement, whereas IGH’s much smaller contracts were rated somewhat relevant because its tasks were similar to the FEPP requirement. 

DysTech Evaluation

DysTech submitted four past performance references.[8]  One was evaluated as relevant and three as somewhat relevant.  AR, exh. 25, Award Rationale, at 27.  The protester argues that the agency improperly failed to rate its somewhat relevant references higher because, even though each supported only one branch of the military, if all three are combined, they support two branches of the military and another agency.  We are provided no basis to question the agency’s evaluation. 

The record shows that DysTech’s contract for Navy College Program support services was rated as somewhat relevant on the basis that “it is restrictive in that it is Navy specific, but includes support staff that are knowledgeable on [Uniformed Services Employment and Reemployment Rights Act (USERRA)] policies who assist in the development of programs.  Given this, the reference is narrowly focused and addresses only a portion of the FEPP requirement.”  Id.  Contrary to DysTech’s allegation, this narrative does not support the argument that the rating was based solely on its Navy focus but that the rating was more broadly based on the fact it addressed only some FEPP requirements.  Moreover, the record also shows that the agency evaluated the entirety of DysTech’s past performance in assigning a performance confidence rating.  Id. at 36. 

DysTech also argues that its references were “slighted” because they only supported a portion of the FEPP tasks even though the proposal specifically stated that they supported the YRRP and accessing USERRA in all of its offices.  DysTech Comments at 8.  On the contrary, the record shows that the firm was credited for these aspects of its past performance.  One contract was considered relevant because its focus was on employment and YRRP activities, and another was considered somewhat relevant because it included knowledge of USERRA and support to Yellow Ribbon Events.  AR, exh. 25, Award Rationale, at 27. 

Evaluation of IGH

The protesters argue that the agency’s evaluation of IGH’s past performance was unreasonable.[9]  A common theme is that IGH’s contracts were too small to be considered relevant; that the agency failed to consider their dollar value; or that the agency failed to consider their complexity.  We have reviewed all of the arguments, as well as testimony taken at a hearing on the past performance evaluation, and have no basis to find the agency’s evaluation unreasonable.

At the outset, the protesters appear to take the position, based on the relevancy rating definitions, that the ratings were to be based solely on magnitude--dollar value--of past contracts and a view of complexity that appears related to magnitude.  Such an interpretation is unreasonable because it would read out of the solicitation the agency’s more specific definition of relevancy:  performance with “a logical connection with the matter under consideration”--the FEPP tasks.  RFP at 70.  It would also ignore the past performance questionnaire’s request for information regarding the “scope of work and complexity/diversity of tasks performed,” the “skills/expertise required,” and relevancy.  RFP Attch. B, Past Performance Relevancy Questionnaire.  A valid interpretation of a solicitation must be consistent with the solicitation when read as a whole and in a reasonable manner.  PTSI Managed Servs., Inc., B-411412, July 20, 2015, 2015 CPD ¶ 236 at 12. 

After our prior decision, DHRA conducted a new evaluation of past performance for all offerors whose technical proposals were rated at least marginal.  The record shows that recency and relevancy was primarily evaluated by the SSEB which provided individual and consensus ratings, as well as comments on each past performance reference submitted by offerors.  The record also shows that the agency contacted past performance references and, for IGH, received questionnaire responses for two of its three references. 

The SSEB found two of IGH’s references to be relevant and recent, and its third reference to be somewhat relevant.  AR, exh. 25, Consensus Past Performance Report, at 13-15.  However, in the final award rationale, the contract specialist, in consultation with the contracting officer, downgraded IGH’s relevancy ratings to somewhat relevant for all three references.[10]  AR, exh. 32, Past Performance Evaluation Report, at 3.

Our review of the record shows that the agency properly neither ignored the small dollar value of IGH’s references, nor made them the sole basis for the past performance evaluation.  As with all the offerors, consistent with the solicitation’s terms, the agency weighed the various aspects of past performance, including whether the tasks performed had a logical connection to the work at issue.  For each of the IGH references, the section of the questionnaire devoted to a relevance discussion included a detailed description of numerous specific tasks performed under the contract and linked them to specific PWS requirements. 

The first example was a contract for a community service relocation readiness program and lending closet program at one location. AR, exh. 15, IGH Proposal, at 29-30. The value of the contract was $58,176 over two years.  Id.  The description of the tasks and their relevance included the fact that IGH directly supported all three major components of the FEPP mission--EGR, YRRP, and EIP--and performed numerous tasks that it linked to numerous PWS requirements.  Id.  The agency found that the relevance of the work was similar in type to a number of FEPP requirements, which it specified, and that it provided direct support to all three components of the mission.  The agency found that, although very similar work was provided in the reference, its magnitude was significantly smaller in dollar value and it only warranted a somewhat relevant rating.  AR, exh. 25, Award Rationale, at 25.  The TEB chair testified that the fact that there were so many activities similar to FEPP outweighed the fact that the work was not geographically dispersed and was on a smaller scale.  Tr. 87:7-90:20.

The second example was a contract to perform grant management support services for the Department of Housing and Urban Development.  AR, exh. 15, IGH Proposal, at 30-32.  The value of this contract was $481,308 over three years.  Id.  The description of why the work was relevant included the fact that it supported a national program; assisted in management oversight of the agency’s volunteer program and associated tasks; and involved numerous other tasks which IGH linked to specific PWS requirements.  Id.  The agency considered this example somewhat relevant because it contained numerous tasks similar to those in the FEPP requirement, and found that it was a similar construct to FEPP in that it has a state committee chair and volunteers.  The agency also recognized that, although the type of work was similar, the dollar amount was significantly lower.  AR, exh. 25, Award Rationale at 25. 

During the hearing, the SSEB chair testified about the reasons the agency viewed the prior contracts to be similar to those here.  In this regard, he explained that the complexities of coordinating volunteer services were a positive aspect of IGH’s past performance.  Tr. 37:14-38:8, 111:3-18, 124:4-12.  Specifically, he testified, “To my recollection the driving force behind the relevancy rating for the HUD management support contract is that the effort crosses 50 states.  And again, it’s structured similar to our field committees with a state chairman and volunteers.  We have 4,500 volunteers, and to be familiar with volunteer organizations or have had past performance with them is--that’s remarkable.”  Tr. 124:4-12. 

Finally, IGH’s third example of its past performance involved a contract to provide program management support services for a pilot program run by the Veterans Health Administration.  AR, exh. 15, IGH Proposal, at 32-34.  The value of the contract was $25,477 over one year.  Id.  IGH described this work as relevant because it included tasks associated with veteran unemployment and numerous other tasks linked to specific PWS requirements at issue here.  Id.  The agency evaluated this reference as somewhat relevant because the work, among other things, required the company to partner with employment assistance agencies and provide assistance in the form of outreach to Guard and Reserve members in rural areas; nonetheless, the agency acknowledged that the scope of the referenced contract was significantly smaller than the FEPP solicitation.  AR, exh. 25, Award Rationale, at 25.

The SSEB’s past performance evaluation was considered by the contracting officer in assigning past performance confidence ratings for all of the evaluated offerors.  With respect to IGH, the evaluation shows the following:

When combined, the relevancy, recency, and past performance information gives IGH a Satisfactory Performance Confidence Assessment Rating.  Although the magnitude of the references are below that of the overall FEPP requirement, IGH has performed efforts that collectively involved much of the complexities of the FEPP requirement.  The Government has an expectation that IGH will successfully perform FEPP’s requirement should they receive the award because the positive feedback they received on their references support much of the scope of this effort.

Id. at 34.

At the hearing, the SSA also testified that she specifically considered the low dollar values of IGH’s prior contracts.  She stated that she was concerned with the magnitude of the contracts, but after discussing this with the evaluators, decided that the similarity of tasks performed by IGH provided a satisfactory level of confidence in IGH’s ability to perform the FEPP work based on its past performance record.  Tr. 320:9-322:10. 

In conclusion, in reviewing the past performance assessments here, we have considered the entirety of the record, the arguments of the parties, and the testimony provided in the hearing conducted on this matter.  While the agency reasonably might have reached a different conclusion, given the broad discretion afforded agencies in evaluating past performance, we cannot find that the evaluation of IGH’s past performance was unreasonable.  Instead, the agency’s conclusions were logical and supported by the entirety of the record. 

Best Value Determination

The protesters also challenge the best-value determination here, arguing that the agency improperly evaluated the offerors’ proposals and did not properly document the decision to pay a price premium for IGH’s proposal. 

We have already found no basis to question the technical evaluation or the SSA’s conclusion that IGH’s proposal was technically superior to those proposals rated acceptable, which she found technically equal to each other.  We have also found no basis to question the past performance evaluation.  In her source selection decision, the SSA explained that, although there was variance in the past performance data for the offerors, the data supported the assigned confidence ratings.  AR, exh. 26, SSDD, at 4.  That is, the SSA found that each offeror had different past performance but that, on balance, she had confidence that they would all successfully perform the contract and that nothing in their past performance records enhanced or detracted from the technical rating.  Id.  As she succinctly put it, the impact of past performance overall was “neutralized.”  Id.  We have no basis to find her conclusion unreasonable.

Finally, in making her source selection decision the SSA clearly recognized the strengths in IGH’s technical proposal.  Id. at 3-4.  After considering the merits of all of the proposals, the fact that the technical factor was the most important factor, and the importance of successful performance of the programs to provide employment services to Guard and Reserve members, the SSA found that IGH’s superior proposal warranted a price premium, “particularly when IGH’s proposal is the sole technically superior proposal, and so greatly exceeded all of the acceptably rated proposals.”  Id. at 5.  Under the circumstances, we find that she sufficiently documented her decision.

The protests are denied.

Susan A. Poling
General Counsel



[1] Proposals could be rated substantial confidence, satisfactory confidence, limited confidence, no confidence, or unknown confidence.  RFP at 72-73.  The satisfactory confidence rating was defined as, “[b]ased on the offeror’s performance record, the [g]overnment has an expectation that the offeror will successfully perform the required effort.”  Id. at 72.

[2] The protests were developed separately but each agency report included documents in common.  In this decision, documents provided in common will use the exhibit number in the TENICA report as it was the first filed, and documents provided in only one agency report will use the exhibit number for that report.

[3] PSTs were required to assist reserve component members and employers in using the Veterans Employment Center website (PWS ¶ 4.21.1.17); to assist such members in their quest for employment and refer them to offices and agencies for employment assistance (PWS ¶ 4.21.1.23); to maintain a working relationship with human resource departments (PWS ¶ 4.21.1.24); and to liaison with agencies that hire, train, or assist veterans in obtaining employment (PWS ¶ 4.21.1.25).

[4] The dollar values of the contracts TEK Source identified for its past performance assessment were approximately $21.2 million over 4 years; $1.3 million over 1 year; $4.7 million over 7 years; $10.7 million over 5 years; and $1.1 million over 1½ years.  AR, exh. 25, Award Rationale, at 38.

[5] Contrary to the firm’s assertion, the record shows that the agency did consider the quality of its past performance references in assigning a confidence rating.  AR, exh. 25, Award Rationale, at 39.  TEK Source has not shown that the totality of its past performance information warranted a higher confidence rating.

[6] TEK Source also argues that the agency failed to consider the complexities of its references in terms of, for example, staffing significant numbers of geographically-dispersed personnel.  However, such complexities are inherent in larger contracts, and the agency expressly noted the dollar values of each reference.  Moreover, the TEB chair testified that these aspects were considered for each reference even if not specifically recorded.  See, e.g., Tr. 32:11-7; 42:6-20; 48:9-49:3.

[7] Their dollar values were approximately $12.6 million over 2½ years; $1.8 million over 1 year; $4.1 million over 2½ years; $4 million over 3 years; and $1 million over 3 years.  AR, exh. 25, Award Rationale, at 40.

[8] Their dollar values were approximately $27.1 million over 4 years; $22.8 million over 4 years; $2.3 million over 1 year; and $1.2 million over 1 year.  AR, exh. 25, Award Rationale, at 36.

[9] Again, a protester is an interested party to challenge the evaluation of the awardee’s proposal when there is a reasonable possibility that the protester’s proposal would be in line for award if the protest were sustained.  Alutiiq Global Solutions, supra.  We have found no basis to question the SSA’s conclusion that the proposals of TEK Source, TENICA, DysTech, and two other offerors were technically equal, and no basis to question the past performance evaluation of the protesters’ proposals.  As discussed below, we also find no basis to question the SSA’s finding that the impact of the past performance evaluation was neutralized and did not impact the overall ratings.  Finally, the proposals of both DysTech and another offeror were both lower-priced than IGH and lower-priced than both TEK Source and TENICA.  As a result, the firms are not interested to challenge IGH’s past performance evaluation.  We note, however, that all of the protesters, including DysTech, raised similar challenges which we address herein.

[10] The contract specialist testified that the reason for this downgrade was to ensure consistency in the record as it relates to magnitude or cost.  Tr. 150:7-12.

Oct 19, 2017

Oct 18, 2017

Oct 17, 2017

Oct 13, 2017

Looking for more? Browse all our products here