Network Runners, Inc.; Appteon, Inc.

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: Network Runners, Inc.; Appteon, Inc.

File: B-413104.26; B-413104.27

Date: March 18, 2019

W. Barron A. Avery, Esq., and William B. O'Reilly, Esq., Baker & Hostetler LLP, for Network Runners, Inc., and David B. Dempsey, Esq., and James D'Agostino, Esq., Dempsey Fontana PLLC, for Appteon, Inc., the protesters.
Christine Simpson, Esq., and Anthony E. Marrone, Esq., Department of Health and Human Services, for the agency.
Jonathan L. Kang, Esq., and Laura Eyester, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protest that the agency unreasonably found a protester's proposal unacceptable under an evaluation factor that the protester contends required only a "high level" response is denied where the agency reasonably interpreted the evaluation factor as requiring offerors to submit a detailed technical approach and methodology for meeting the solicitation requirements.

2. Protest that the agency unreasonably found a protester's proposal unacceptable under an evaluation subfactor is denied where the protester's commitment to meet other mandatory solicitation requirements is not a substitute for addressing the specific requirements of the evaluation subfactor.

DECISION

Network Runners, Inc., a woman-owned small business, of Sterling, Virginia, and Appteon, Inc., an 8(a) small business, of Vienna, Virginia, protest the decision by the Department of Health and Human Services (HHS), National Institutes of Health (NIH), to find their respective proposals unacceptable in the competition conducted under request for proposals (RFP) No. NIHJT2016015, which was issued for information technology solutions and services. Network Runners and Appteon argue that the agency unreasonably interpreted the solicitation and failed to reasonably evaluate their proposals.

We deny the protests.

BACKGROUND

NIH administers three government-wide multiple-award indefinite-delivery, indefinite-quantity (IDIQ) contracts for information technology supplies and contracts. Memorandum of Law (MOL) (B-413104.26, B-413104.27) at 1. These protests concern the Chief Information Officer-Solutions and Partners Small Business (CIO-SP3) IDIQ contracts. Id. The agency issued the solicitation on March 14, 2016, seeking proposals for the award of additional IDIQ CIO-SP3 contracts as part of a "ramp-on" to expand the pool of vendors eligible to compete for task orders. Id. The solutions and services to be provided under the contracts "include, but are not limited to, health and biomedical-related [information technology (IT)] services to meet scientific, health, administrative, operational, managerial, and information management requirements." Agency Report (AR), Tab 3.1, Conformed RFP, at 8.¹

The solicitation was set aside for small businesses, and stated that awards would be made in groups based on the status of the offerors: historically underutilized business zone small businesses, service-disabled veteran-owned small businesses, participants in the Small Business Administration's 8(a) program, and small businesses. Id. at 134. The initial CIO-SP3 contracts for the 8(a) group were awarded on June 30, 2012, and have a 10-year period of performance; the contracts awarded under the RFP here for the 8(a) group will have a period of performance ending on June 29, 2022.² Id. at 8, 34; Agency Response to GAO Question, Mar. 8, 2019, at 1. The total amount that may be awarded under the CIO-SP3 contracts is $20 billion. Id. at 9.

The RFP advised that proposals would be evaluated in two phases. In phase 1, the agency was to evaluate proposals based on the following go/no-go criteria: (1) compliant proposal; (2) verification of an adequate accounting system; (3) IT services for biomedical research, health sciences, and healthcare; and (4) domain-specific capability in a health related mission. Id. at 143-44. The RFP stated that, for the phase 1 evaluation, proposals that failed to meet any of the go/no-go criteria would be ineligible for award. Id. at 144.

In phase 2, the agency was to evaluate proposals that passed the phase 1 criteria, using the following four factors: (1) technical capability and understanding (including 10 task areas³); management approach (including four subfactors); past performance; and price. Id. at 144, 150. For the phase 2 evaluation, proposals that received an unacceptable rating for any of the evaluation factors (except price), task areas, or subfactors would be ineligible for award. Id. at 145-46. For purposes of award in the phase 2 evaluation, factors 1 and 2 were of equal importance and "more important" than factor 3, and factors 1-3 were "[i]ndividually . . . significantly more important" than factor 4, price. Id. at 141.

NIH received proposals from 552 offerors, including Network Runners and Appteon, by the closing date of May 16, 2016. Contracting Officer's Statement (COS) (B-413104.26, B-413104.27) at 1. As discussed below, the agency found Network Runners' proposal unacceptable under the phase 1 evaluation. AR, Tab 5.2, 8(a) Phase 1 Evaluation Report, at 26. The agency found Appteon's proposal acceptable under the phase 1 evaluation, but unacceptable under the phase 2 evaluation. AR, Tab 5.5, 8(a) Factor 2 Evaluation Report, at 105. Both offerors' proposals were therefore excluded from award consideration. Network Runners and Appteon were provided debriefings on January 2, 2019, and these protests followed.

DISCUSSION

Network Runners and Appteon each argue that NIH unreasonably found their proposals unacceptable and ineligible for award. For the reasons discussed below, we find no basis to sustain either protest.⁴ The evaluation of an offeror's proposal is a matter within the agency's discretion. National Gov't Servs., Inc., B-401063.2 et al., Jan. 30, 2012, 2012 CPD ¶ 59 at 5. In reviewing protests challenging an agency's evaluation of proposals, our Office does not reevaluate proposals or substitute our judgment for that of the agency, but rather examines the record to determine whether the agency's judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement laws and regulations. MicroTechnologies, LLC, B-413091, B-413091.2, Aug. 11, 2016, 2016 CPD ¶ 219 at 4-5. A protester's disagreement with the agency's judgment in its determination of the relative merit of competing proposals, without more, does not establish that the evaluation was unreasonable. Veterans Evaluation Servs., Inc. et al., B-412940, et al., July 13, 2016, 2016 CPD ¶ 185 at 9-10.

Network Runners' Protest

Network Runners argues that NIH unreasonably found its proposal unacceptable under the phase 1 go/no-go evaluation criterion for IT services for biomedical research, health sciences, and healthcare. Specifically, the protester contends that the agency unreasonably interpreted the solicitation as requiring a detailed response explaining how the protester would perform mandatory requirements regarding biomedical research, health sciences, and healthcare, and also contends that the agency failed to reasonably consider and evaluate information in its proposal. Network Runners' Protest at 5-6; Network Runners Comments at 2-4. For the reasons discussed below, we find no basis to sustain the protest.

As discussed above, the RFP stated that phase 1 of the evaluation was based on go/no-go criteria. RFP at 141. One of the four go/no-go evaluation criteria was IT services for biomedical research, health sciences, and healthcare, which was also a task area under the phase 2 technical capability and understanding factor.⁵ Id. at 143-144. With respect to the technical capability and understanding factor, the RFP instructed offerors to "demonstrate the Offeror's overall Technical Approach and the specific Methodology that supports each applicable Task Area." Id. at 135. The RFP advised that the agency would evaluate proposals as follows:

Proposals shall address each applicable Task Area separately (within the page limits established for the number of Technical Areas Proposed). The Government will assess the Offeror's proposal for any risks associated with the Offeror in meeting the technical capabilities required.

* * * * *

The Government will evaluate, specific to each of the ten (10) Task Areas identified below, the Offerors' proposed technical approach and methodology in order to assess the level of knowledge and expertise for each Task Area proposed.

RFP at 146. The RFP also advised that the agency would consider offerors' experience, as follows:

More favorable ratings may be assessed for Offerors providing additional examples of their experience and/or qualifications beyond those minimally required to address a specific Task Area. Examples of experience and/or qualifications which may exceed basic requirements and benefit the Government include: internal initiatives, certifications, training programs, joint research projects, participation in industry organizations, and membership in Government councils, provided the Offeror can clearly associate these examples and/or qualifications with the Task Area proposed.

Id.

In addition, and as relevant here, task area 1 required offerors to address the following IT service requirements regarding biomedical research, health sciences, and healthcare:

1. Subfactor 1 - Task Area 1, IT Services for Biomedical Research, Health Sciences, and Healthcare (MANDATORY TASK AREA - Go/No-Go Requirement):

The objective of this Task Area is to support Biomedical Research, Health Sciences and Healthcare by performing studies and analyses and providing operational, technical, and maintenance services for the systems, subsystems, and equipment, some of which interface with, and are extensions to, information systems throughout the Federal Government.

Id. at 135. The performance work statement (PWS) identified a "comprehensive, but not limited, sampling of work to be performed under this Task Area," which consisted of 19 areas of work. Id. at 21.

NIH found that Network Runners' proposal for this evaluation task area merited a no-go rating under phase 1 because "it failed to recognize, address, or consider the Government's requirements to demonstrate the Offeror's overall technical approach and the specific methodology that supports Task Area 1. . . ." AR, Tab 5.2, 8(a) Phase 1 Evaluation Report, at 26. Specifically, the agency cited the following concerns regarding the protester's proposal:

The Offeror's Proposal does not adequately discuss or describe their Methodology and Technical Approach for [task area (TA)] 1. The Offeror presented Examples of Experience and/or Qualifications they identified as relevant to this TA, describing at a high level what they did however [] lacks any detail on how they intend to address future requirement for this TA.

Id. For these reasons, the agency assigned the protester's proposal a no-go rating to the phase 1 evaluation, and an unacceptable rating overall. Id.

Network Runners first argues that the agency's evaluation was unreasonable because the RFP did not require offerors to provide a detailed response for task area 1. In this regard, the protester contends that the RFP did not specify the level of detail to be provided. Network Runners Protest at 5. Instead, the protester argues that the requirements of task area 1 were set forth in "general terms," which meant "the level of specificity that must be provided for Task Area 1 must, by its very nature, be described at a high level." Id.

Where a protester and agency disagree as to the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions. C&S Corp., B-411725, Oct. 7, 2015, 2015 CPD ¶ 311 at 3; Alliance Tech. Servs., Inc., B-410307, B-410307.3, Dec. 1, 2014, 2014 CPD ¶ 345 at 3. Where a dispute exists as to a solicitation's terms, we will first examine the plain language of the solicitation. Point Blank Enters., Inc., B-411839, B-411839.2, Nov. 4, 2015, 2015 CPD ¶ 345 at 4.

We find no basis to conclude that the RFP required only a general or high level description of the protester's approach to task area 1. In this regard, the RFP instructed offerors to "demonstrate the Offeror's overall Technical Approach and the specific Methodology" for each task area, and stated that the agency would evaluate the proposed technical approach and methodology to "assess the [offeror's] level of knowledge and expertise for each Task Area proposed." Id. at 135, 146. Moreover, the PWS identified 19 areas of work which set forth examples of the scope of the requirements to be addressed in offerors' proposals. Id. at 21. Aside from its general characterizations of the RFP, the protester does not reasonably explain why offerors were required to address the task area 1 requirements at only a high level. We therefore find no merit to the protester's argument that the RFP required only a high level response, as opposed to an "overall Technical Approach" and a "specific Methodology."

Next, Network Runners argues that its proposal in any event addressed the requirement to propose a technical approach and methodology that demonstrated its knowledge and expertise. Network Runners Comments at 3-4. The protester contends that the following statements in its proposal reflected a technically acceptable response:

[DELETED]

* * * * *

[Network Runners'] [DELETED] - giving us the ability to immediately ramp up and support the CIO-SP3 Task Orders, and specifically TA 1.

Id. at 3 (quoting AR, Tab 4.1, Network Runners Task Area 1 Response, at 1).⁶

As discussed above, NIH found that Network Runners' proposal did not set forth an approach or methodology that demonstrated the protester's knowledge and expertise regarding the task area 1 requirements. AR, Tab 5.2, 8(a) Phase 1 Evaluation Report, at 26. With regard to the sections of the protester's proposal cited above, the agency explains that it considered the proposal language cited above to be "puffery" that did not provide "enough detail for the Agency to substantiate how the Protester intended to address future requirements for this Task Area." COS (B-413104.26) at 2.⁷ Additionally, the agency states that the information provided was considered "inconsequential" with regard to the requirement to propose a technical approach and methodology. Id. at 2-3.

We conclude that the agency reasonably found that the general language in the protester's proposal cited above did not reflect a technical approach or methodology that demonstrated its knowledge and expertise regarding the task area 1 requirements. See AR, Tab 4.1, Network Runners Task Area 1 Response, at 1. For example, the protester does not explain why its statement that it will "[DELETED]" constitutes an adequately-detailed technical approach or methodology, as opposed to, as the agency found, a high-level summary that lacks necessary details. See AR, Tab 5.2, 8(a) Phase 1 Evaluation Report, at 26. The protester's disagreement with the evaluation in this matter does not establish that the agency's judgment was unreasonable. See Veterans Evaluation Servs., Inc., et al., supra.

The agency also found that, rather than setting forth a technical approach and specific methodology for the task area 1 requirements, the protester's proposal referenced other parts of its proposal, as follows: "We explain our approach to delivering IT services through specific 'how we do it' sections across Task Areas 2 through 10." AR, Tab 5.2, 8(a) Phase 1 Evaluation Report, at 26 (quoting AR, Tab 4.1, Network Runners Task Area 1 Response, at 1). The agency concluded that this approach constituted, in effect, an admission by the protester that its task area 1 proposal did not satisfy the requirements for task area 1, and that specific information located elsewhere in its proposal was needed to meet the requirement. MOL (B-413104.26) at 7. The agency contends that consideration of information outside of the protester's response to task area 1 would have been improper because the RFP limited offerors to three pages for each task area response. Id. at 8 (citing RFP at 129). Additionally, the agency notes that the RFP stated that the phase 1 evaluation would consider the task area 1 response, and that additional areas of the proposal--such as task areas 2-10--would not be considered if the task area 1 response was not found acceptable. Id. at 9 (citing RFP at 144).

Network Runners disputes the agency's contention that its proposal for task area 1 relied on or required consideration of its responses for task areas 2-10. See Network Runners Comments at 3. Instead, the protester argues that its proposal was adequate based on the information set forth in its proposal for task area 1, as quoted above. Id. (citing AR, Tab 4.1, Network Runners Task Area 1 Response, at 1).

We think the agency reasonably understood the protester's proposal to indicate that specific details regarding its technical approach may have been, at best, located elsewhere in the proposal. We find no basis to conclude that the agency was obligated to look to other parts of the protester's proposal to understand its task area 1 response. See Océ Gov't Servs., Inc., B-409922, Sept. 18, 2014, 2014 CPD ¶ 277 at 6 (contracting agencies are not obligated to go in search of needed information that the offeror has omitted or failed to adequately present). We therefore find no basis to sustain the protest.

Appteon's Protest

Appteon argues that NIH unreasonably found its proposal unacceptable under the phase 2 management approach evaluation factor. Specifically, the protester contends that the agency unreasonably assigned two significant weaknesses to its proposal, which resulted in an overall unacceptable rating. Appteon Protest at 8-10. For the reasons discussed below, we find no basis to sustain the protest.⁸

The management approach evaluation factor had four subfactors: (1) domain-specific capability in a health-related mission, (2) resources, (3) program management, and (4) corporate commitment. RFP at 148-50. As relevant here, the corporate commitment subfactor contained two elements: (1) marketing and pursuit of technical innovations, and (2) contract and task order management. Id. at 149-50. Appteon's protest concerns the first element, which stated that the agency would evaluate proposals as follows:

The Government will determine the degree to which the Offeror demonstrates a sound strategy for marketing its contract to NIH Institutes and Centers (ICs), HHS Operational Divisions, and other eligible Federal Agencies during the life of the contract. The Government will determine the degree to which the Offeror describes a strategy for the pursuit of technological innovations including its method of tracking and motivating success in these efforts.

Id. at 149.

Appteon's proposal for the marketing and pursuit of technical innovations element of the corporate commitment subfactor stated as follows:

[DELETED]

AR, Tab 4.11, Appteon Management Approach Proposal, at 22.

NIH found that Appteon's proposal was acceptable under the domain-specific capability in a health-related mission, resources, and program management subfactors of the management approach evaluation factor. AR, Tab 5.5, 8(a) Factor 2 Evaluation Report, at 105. The agency found, however, that the protester's proposal was unacceptable under element 1 of the corporate commitment subfactor because it "failed to demonstrate adequate commitment to the CIO-SP3 [Small Business (SB) government-wide acquisition contract]," and "failed to adequately recognize, address, or consider the government's requirements in terms of its proposed strategy for marketing and pursuit of technological innovation." Id. The agency identified the following two significant weaknesses, which rendered the protester's proposal unacceptable:

A flaw exists in the offeror's proposal that appreciably increases the risk of unsuccessful contract performance. Although the proposal did contain a section labeled Element 1 - Marketing and Pursuit of Technological Innovation, insufficient detail was provided as to a strategy or approach for marketing the contract to NIH Institutes and Centers (ICs), HHS Operational Divisions, and other eligible Federal Agencies. Very little actionable information was provided and, as a result, the soundness of the marketing strategy was not demonstrated. Without a sound marketing strategy and process, the prospects for growth and wider adoption of CIO-SP3 SB are limited.

* * * * *

A flaw exists in the offeror's proposal that appreciably increases the risk of unsuccessful contract performance. The proposal does contain a section labeled Element 1 - Marketing and Pursuit of Technological Innovation, however insufficient detail is provided as to the offeror's strategy for pursuing technological innovation, including its method of tracking and motivating success in these efforts. Without a sound strategy for pursuing, tracking, and motivating technological innovations, opportunities for leveraging innovative technologies and solutions may be missed.

Id. at 113.

Appteon first argues that NIH unreasonably found its proposal unacceptable because the two significant weaknesses cited above were not considered deficiencies, and therefore could not have provided a basis to reject the proposal as unacceptable. Appteon Protest at 7-8; Appteon Comments at 2. In this regard, the protester notes that the RFP did not define the term significant weakness, and for this reason contends that the agency did not reasonably explain how a significant weakness could render a proposal unacceptable. Id.

The RFP defined an unacceptable rating as follows: "The proposal fails to recognize, address, or consider the Government's requirements." RFP at 145. Although the RFP did not specifically define the term significant weakness, the agency's evaluation clearly stated that the two concerns identified in the protester's proposal "appreciably increase[d] the risk of unsuccessful contract performance." AR, Tab 5.5, 8(a) Factor 2 Evaluation Report, at 113. The agency's evaluation is consistent with the definition of significant weakness in the Federal Acquisition Regulation (FAR): "A 'significant weakness' in the proposal is a flaw that appreciably increases the risk of unsuccessful contract performance." FAR § 15.001. We therefore find no merit to the protester's argument that the labeling of these concerns as significant weaknesses, rather than deficiencies, precluded the assignment of an unacceptable rating.

Next, Appteon argues that the agency unreasonably failed to consider its overall approach to the requirements of element 1, marketing and pursuit of technological innovation, and therefore unreasonably assigned the two significant weaknesses to its proposal. With regard to both significant weaknesses, the protester does not specifically contend that its response to element 1 addressed the RFP requirements. Instead, the protester contends that the agency unreasonably limited its review of Appteon's proposal for element 1 to the text of its proposal for that element, quoted above, rather than considering other parts of the protester's proposal which the protester contends address these requirements.⁹ See Appteon Protest at 9; Appteon's Comments at 4.

As an initial matter, we note that nothing in the protester's proposal regarding element 1 referenced other parts of its proposal or stated that the response for this element relied upon or incorporated other parts of the proposal. See AR, Tab 4.11, Appteon Management Approach Proposal, at 22. Similarly, none of the other parts of the proposal cited by the protester state that they were intended to address the requirements of element 1. See Appteon Comments at 4 (citing AR, Tab 4.11, Appteon Management Approach Proposal, at 8, 22). As our Office has explained, an offeror has the burden of submitting an adequately written proposal, and it runs the risk that its proposal will be evaluated unfavorably when it fails to do so. ASFA Int'l Constr. Indus. & Trade, Inc., B-412337.2, Jan. 21, 2016, 2016 CPD ¶ 48 at 4-5. Additionally, contracting agencies are not obligated search proposals for needed information that the offeror has omitted or failed to adequately present. Océ Gov't Servs., Inc., supra. We therefore find no basis to conclude that the agency should have understood that other parts of the protester's proposal were intended to supplement the protester's response to the corporate commitment subfactor.

With regard to the significant weakness concerning the element 1 marketing requirements, the protester notes that the contract administration data section of the RFP (section G) requires the contract program manager to participate in certain activities related to marketing such as: dissemination of marketing materials for the CIO-SP3 contract; participating in trade shows and other conferences; using the CIO-SP3 contract logo on marketing materials; and attending mandatory meetings that include, among other things, discussion of business and marketing opportunities for contract vendors. See RFP at 36-37. The protester argues that its proposal committed to perform these required activities, and that "[t]here is no indication in Appteon's Technical or Management proposal that Appteon's Program Manager would not" perform them. Appteon Protest at 9. For this reason, the protester contends that the agency should have found its proposal acceptable under the element 1 requirements for marketing. Id.

As discussed above, the RFP required offerors to demonstrate "the degree to which the Offeror demonstrates a sound strategy for marketing its contract." RFP at 149. We find no basis to conclude that the agency should have understood that Appeton's agreement to meet these mandatory requirements also demonstrated that Appeton's proposal met the separate requirement to demonstrate a sound strategy for marketing. We therefore find no basis to conclude that the agency unreasonably assigned the protester's proposal a significant weakness in connection with the marketing requirements.

Similarly, with regard to the second significant weakness under element 1, concerning technological innovations, the protester contends that this requirement is the focus of the entire contract, and that its proposal, as a whole, should have been found to meet this requirement. Appteon Protest at 10. In this regard, the protester argues that "[v]irtually every position NIH required pricing for is involved with identifying, analyzing and hence pursuing technology innovations." Id. The protester contends, therefore, that because its proposal was assigned a highly acceptable rating under the technical approach factor, "it is reasonable to conclude that Appteon provided a 'sound strategy for pursuing, tracking, and motivating technological innovations, opportunities for leveraging innovative technologies and solutions'" under the management approach factor. Id.

As discussed above, however, the RFP required offerors to "describe[] a strategy for the pursuit of technological innovations including [the] method of tracking and motivating success in these efforts." RFP at 149. We therefore find no merit to the protester's argument that the RFP's express requirement to describe a strategy for technical innovation under the management approach evaluation factor could be inferred or assumed based on an offeror's acceptable response to the personnel requirements of the technical capability and understanding factor. In sum, we find no basis to sustain the protest.

The protests are denied.

Thomas H. Armstrong
General Counsel