Hendall, Inc.

 

Decision

Matter of:  Hendall, Inc.

File:  B-417513.3; B-417513.4

Date:  February 24, 2020

DIGEST

1.  Protest challenging the agency’s evaluation under the technical and past performance factors is denied where the record shows that the agency’s evaluation was reasonable and consistent with the terms of the solicitation.

2.  Protest challenging the agency’s best-value tradeoff decision is denied where the underlying evaluation was reasonable and consistent with the terms of the solicitation.

Hendall, Inc., of Rockville, Maryland, protests the issuance of a task order to IQ Solutions, Inc., of Rockville, Maryland, under task order request for proposals (TORP) No. 2001, issued by the Department of Health and Human Services, National Institutes of Health (NIH), for communications support services.  The protester challenges various aspects of the agency’s source selection process, including the agency’s evaluation under the technical and past performance factors and the agency’s best-value tradeoff decision.

We deny the protest.

BACKGROUND

On December 18, 2018, the agency issued the TORP, pursuant to Federal Acquisition Regulation part 16, as a small business set‑aside to holders of NIH Public Information and Communications Services II indefinite-delivery, indefinite-quantity (IDIQ) contracts.  Contracting Officer’s Statement (COS) at 1; see generally Agency Report (AR), Tab 2g, TORP.[1]  The TORP seeks a contractor to support NIH’s National Institute on Aging with its mission to disseminate information about health and research advances related to aging and Alzheimer’s disease.  TORP at 1.  Specifically, the contractor will be required to provide all necessary services, including various information development and dissemination services, as well as qualified personnel, material, equipment, and facilities.  Id. at 2.  The TORP contemplates the issuance of a single time-and-materials task order for a base year and four 1-year option periods, with an independent government cost estimate of $25 million.  Id. at 2, 48; see also AR, Tab 10, Award Determination, Nov. 19, 2019, at 2.

The TORP provided for award on a best-value tradeoff basis, considering three factors, listed in descending order of importance:  technical, past performance, and cost/price.  AR, Tab 2d, TORP Evaluation Criteria, at 1.  The TORP advised that the technical and past performance factors, when combined, were significantly more important than the cost/price factor.  Id.

Under the technical factor, the TORP provided that the agency would assign up to 100 possible points to proposals based on four components:  technical approach and understanding (40 points), staffing and management (40 points), facilities (10 points), and sample work products (10 points).  AR, Tab 2d, TORP Evaluation Criteria, at 1-3.  Of relevance here, for the staffing and management component, the TORP advised that offerors “should demonstrate the availability of experienced, qualified staff and a feasible plan for organizing and managing the tasks in the [statement of work (SOW)].”  Id. at 2.  The SOW described, among other things, a list of anticipated “communications-related website development and enhancement projects” that the contractor “shall support and carry out.”  TORP at 9-10.

Under the past performance factor, the TORP provided that the agency would consider various aspects of the offeror’s existing and prior contracts, including relevancy and quality.  AR, Tab 2d, TORP Evaluation Criteria, at 3-4.  The TORP advised that the agency would assign an overall adjectival rating under this factor with “excellent” as the highest rating, and that the agency’s evaluation would be “the product of subjective judgment by the government[.]”[2]  Id.  Of relevance here, the TORP included a list of several areas of expertise and experience that “[r]elated work may include, but not [be] limited to,” for the agency’s consideration.  Id. at 3.

On or before the February 1, 2019 closing date, the agency received proposals from Hendall[3] and IQ Solutions.  The agency evaluated the proposals and selected Hendall for award.

On April 24, IQ Solutions filed a protest with our Office challenging, among other things, the agency’s evaluation of proposals, discussions, and award decision.  The agency took corrective action, and we dismissed the protest as academic.  IQ Sols., Inc., B‑417513, May 9, 2019 (unpublished decision).  After the agency’s first round of corrective action, which included reevaluating the proposals and affirming its award to Hendall, IQ Solutions filed a second protest on July 8.  The agency advised that it would again take corrective action, and we dismissed the protest as academic.  IQ Sols., Inc., B-417513.2, Aug. 13, 2019 (unpublished decision).

As part of its second round of corrective action, the agency amended the TORP, opened discussions, and requested and received FPRs.  The agency then evaluated the FPRs as follows:

	Hendall	IQ Solutions
Technical[4]	97	94.5
Past Performance	Excellent	Excellent
Total Evaluated Price	$26,545,716	$22,561,974

 

AR, Tab 10, Award Determination, Nov. 19, 2019, at 2.  The agency assessed various significant strengths and strengths, and one weakness, in each proposal.  Specifically, the agency assessed a weakness in both proposals under the staffing and management component based on their responses to a requirement to conduct and support a project described in the SOW.  See AR, Tab 7a, Hendall Technical Evaluation Report, Nov. 18, 2019, at 7; AR, Tab 7b, IQ Solutions Technical Evaluation Report, Nov. 15, 2019, at 7; AR, Tab 9, Evaluator Award Recommendation, Nov. 18, 2019, at 4 (noting the evaluators advised the contracting officer that, “[b]ecause [this issue] is not particularly significant and both offerors have this issue, you may decide to disregard the weakness for both offerors”).

Based on the evaluation, the evaluators’ award recommendation, and “a detailed review of the positives and negatives associated with each proposal and [] special attention to the discriminating attributes of the proposals,” the contracting officer concluded that IQ Solutions’ FPR offered the best overall value under the terms of the TORP.  AR, Tab 10, Award Determination, Nov. 19, 2019, at 1.  In comparing the FPRs from Hendall and IQ Solutions, the contracting officer acknowledged Hendall’s higher price and technical superiority, and the offerors’ equivalent past performance ratings.  The contracting officer also concurred with the evaluators’ view that, “[t]o justify the premium (even where technical proposal and past performance are significantly more important than cost or price), Hendall’s unique advantages would need to be much more significant to contract performance and IQ Solutions’ unique advantages would need to have a much lesser positive impact on contract performance.”  Id. at 2; see also AR, Tab 9, Evaluator Award Recommendation, Nov. 18, 2019, at 4.

On November 20, the agency notified Hendall of the award to IQ Solutions.  After a debriefing, this protest followed.[5]

DISCUSSION

Hendall challenges several aspects of the agency’s source selection decision, including the evaluation of proposals under the technical and past performance factors and, based on several alleged evaluation flaws, maintains that the agency’s best-value determination was flawed.  We have reviewed all of Hendall’s arguments and discuss below several representative examples of Hendall’s assertions, the agency’s responses, and our conclusions.  Based on our review, we find no basis to sustain Hendall’s protest.[6]

Technical

Hendall raises various unpersuasive allegations regarding the agency’s technical evaluation.  For example, the protester challenges the agency’s evaluation of both proposals under the staffing and management component, where Hendall received 38 points and IQ Solutions received 37 points, out of 40 possible points.

First, Hendall disagrees with the agency’s assessment of a weakness in its proposal based on its response to a requirement to conduct and support a project involving information sharing through voice-activated devices.  Protest at 11-13; see also Protester’s Comments at 3-5.  Specifically, Hendall complains that this requirement was “a very minor portion” of the SOW.  Protest at 11.  Hendall also claims that the agency erred in finding that its proposal did not sufficiently address this requirement; for example, the protester asserts that, “while Hendall did not explicitly state [its proposed staff] has experience” in this work, “NIH erred in inferring that he did not.”  Id. at 12.

Under the staffing and management component, the TORP advised that offerors “should demonstrate the availability of experienced, qualified staff and a feasible plan for organizing and managing the tasks in the SOW.”  AR, Tab 2d, TORP Evaluation Criteria, at 2.  The SOW described, among other things, a list of anticipated projects that “the contractor shall support and carry out[,]” including a project to “[p]lan, develop, and execute voice-integrations to share [the agency’s] health information content on voice-activated devices.”  TORP at 9-10.

The record shows, and the agency explains, that the evaluators assessed a weakness in both proposals based on their responses to this requirement.  See AR, Tab 7a, Hendall Technical Evaluation Report, Nov. 18, 2019, at 7; AR, Tab 7b, IQ Solutions Technical Evaluation Report, Nov. 18, 2019, at 7; see also Memorandum of Law (MOL) at 7-12.  Specifically, the evaluators assessed this weakness in Hendall’s proposal as follows:

In the initial proposal, the offeror listed [a named individual] as having experience with this work.  [This named individual] was not listed in the FPR, and none of the staff listed in [a section of Hendall’s proposal] appear to have experience or training in voice integration or voice-activated devices.  This is a weakness because these interfaces are complex and having to train a developer to do this work could introduce inefficiencies and risk, which may increase the probability of unsuccessful contract performance in this one area.

AR, Tab 7a, Hendall Technical Evaluation Report, Nov. 18, 2019, at 7.  For IQ Solutions, the evaluators similarly noted that “[n]one of the staff listed in [a section of IQ Solutions’ proposal] appear to have experience or training in voice integration or voice-activated devices[,]” and repeated their rationale for assessing such a weakness.  AR, Tab 7b, IQ Solutions Technical Evaluation Report, Nov. 15, 2019, at 7.  In short, as the agency explains, “[n]either contractor explicitly demonstrated that they had sufficient experience in voice integration[,] which is why both received a weakness.”  MOL at 8; see also COS at 4 n.1.

In reviewing protests challenging the evaluation of proposals in a task order competition, we do not conduct a new evaluation or substitute our judgment for that of the agency but examine the record to determine whether the agency’s judgment was reasonable and in accord with the evaluation criteria.  Booz Allen Hamilton, Inc.; Leidos Inc., B-410032.4 et al., Mar. 16, 2015, 2015 CPD ¶ 108 at 5.  A protester’s disagreement with an agency’s judgment is not sufficient to establish that an agency acted unreasonably.  STG, Inc., B-405101.3 et al., Jan. 12, 2012, 2012 CPD ¶ 48 at 7.

Here, we find no basis to question the agency’s evaluation.  The agency found that Hendall did not sufficiently explain how it would meet a specific requirement, and that this constituted a weakness given the complexity of the work and the increased risk of unsuccessful performance.  While the protester maintains that the agency’s evaluation was unreasonable “because Hendall had the experience NIH sought,” Protester’s Comments at 4, we note that an offeror has the responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation requirements and allows a meaningful review by the procuring agency.  ProActive, LLC, B-403545, Nov. 18, 2010, 2011 CPD ¶ 56 at 6.  An offeror that does not affirmatively demonstrate the merits of its proposal risks rejection of its proposal or risks that its proposal will be evaluated unfavorably where it fails to do so.  Johnson Controls, Inc., B‑407337, Nov. 20, 2012, 2012 CPD ¶ 323 at 4.

Further, the record shows that the agency assessed the same weakness in both proposals.  We also note that the evaluators advised the contracting officer that, “[b]ecause [this issue] is not particularly significant and both offerors have this issue, you may decide to disregard the weakness for both offerors.”  AR, Tab 9, Evaluator Award Recommendation, Nov. 18, 2019, at 4.  Under these circumstances, we find no basis to sustain this protest ground.

Second, Hendall argues that the agency’s “flawed staffing plan evaluation led to illogical conclusions” and that its proposed staffing plan should have been considered “vastly superior[.]”  Protester’s Supp. Comments at 4; Supp. Protest at 3.  In this regard, Hendall maintains that it “should have received a significant benefit” for its proposed use of the incumbent’s staff--notwithstanding the significant strength and the higher rating that it already received based on this aspect of its proposal.[7]  Protester’s Supp. Comments at 5.  The protester also contends that, because the agency assessed a significant strength for IQ Solutions’ proposed project director due to the individual’s years of related experience, Hendall should have received an additional significant strength because its proposed project director “also exceeded the required number of years of experience.”  Supp. Protest at 4.

As noted above, under the staffing and management component, the TORP advised that offerors “should demonstrate the availability of experience, qualified staff and a feasible plan for organizing and managing the tasks in the SOW.”  AR, Tab 2d, TORP Evaluation Criteria, at 2.  The record shows that the agency assessed significant strengths and strengths in both proposals under this component, including a significant strength for Hendall’s proposed use of incumbent staff and a significant strength for IQ Solutions’ proposed project director.  Specifically, the evaluators found the following:

Hendall received an additional significant strength . . . because it proposed [REDACTED] incumbent staff members with very strong subject matter and technical expertise, which would ensure that the staff on the contract is able to successfully perform the tasks right away.  However, that significant strength is balanced out by IQ Solutions receiving its own significant strength for the qualifications and experience of its proposed project director . . . .  IQ Solutions having a seasoned professional in this role with years of directly related experience is critical to successful contract operation, and the proposed Hendall project director did not demonstrate comparably relevant or deep experience.

*  *  *  *  *

Both offerors have the same number of significant strengths, but Hendall’s proposal to include over [REDACTED] incumbent staff on the new contract is slightly more significant than the other significant strengths identified, justifying a slightly higher number of points to Hendall for this factor (38 to 37).

AR, Tab 9, Evaluator Award Recommendation, Nov. 18, 2019, at 3, 5.  The contracting officer concurred with the evaluators’ conclusions and further noted that Hendall’s advantages included its proposed use of the incumbent contractor.  AR, Tab 10, Award Determination, Nov. 19, 2019, at 2.

As noted above, in reviewing protests challenging the evaluation of proposals in a task order competition, we do not conduct a new evaluation or substitute our judgment for that of the agency but examine the record to determine whether the agency’s judgment was reasonable and in accord with the evaluation criteria.  Booz Allen Hamilton, Inc.; Leidos Inc., supra, at 5.  A protester’s disagreement with an agency’s judgment is not sufficient to establish that an agency acted unreasonably.  STG, Inc., supra, at 7.

Here, we find no basis to question the agency’s evaluation.  Contrary to the protester’s contention that it “should have received a significant benefit” for its proposed use of incumbent staff, Protester’s Supp. Comments at 5, the record shows the agency assessed this as a significant strength, which it viewed as “slightly more significant than the other significant strengths identified” and supporting its assignment of a higher rating to Hendall.  AR, Tab 9, Evaluator Award Recommendation, Nov. 18, 2019, at 5.  Moreover, the contracting officer also recognized the advantages from Hendall’s proposed use of the incumbent in making his best-value tradeoff decision.  We find baseless the protester’s belief that it should have received even more credit for this aspect of its proposal.

Further, to the extent Hendall contends that it should have received a significant strength for its proposed project director, we note that an agency is not required to document every single aspect of its evaluation or explain why a proposal did not receive a strength for a particular feature.  22nd Century Techs., Inc., B-417336, B-417336.2, May 24, 2019, 2019 CPD ¶ 198 at 5; InnovaSystems Int’l, LLC, B-417215 et al., Apr. 3, 2019, 2019 CPD ¶ 159 at 10.  In any event, the record shows that the evaluators found that “the proposed Hendall project director did not demonstrate comparably relevant or deep experience” compared to the proposed IQ Solutions project director.  See AR, Tab 9, Evaluator Award Recommendation, Nov. 18, 2019, at 3.  We also note the agency’s explanation that the assessment of a significant strength for IQ Solutions was “not just based on the total number of years of experience the project director had, but on the quality and breadth of her experience.”  Supp. MOL, Jan. 15, 2020, at 11.  Therefore, we find no merit to Hendall’s arguments, and this protest ground is denied.

Finally, we dismiss as legally insufficient Hendall’s argument that the agency “did not consider the risks posed by IQ Solutions’ low labor rates and whether those rates would be adequate to retain the necessary experienced, qualified staff or to perform their stated technical approach.”  Protest at 14; see also EPDS, Dkt. No. 22, GAO Notice of Review of Request for Partial Dismissal, Dec. 16, 2019.  Arguments that an agency did not perform an appropriate analysis to determine whether prices are too low, such that there may be a risk of poor performance, concern price realism.  See CyberData Techs., Inc., B‑417084, Feb. 6, 2019, 2019 CPD ¶ 34 at 5, citing NJVC, LLC, B-410035, B‑410035.2, Oct. 15, 2014, 2014 CPD ¶ 307 at 8.  While an agency may conduct a price realism analysis in awarding a fixed-price or time-and-materials task order for the limited purposes of assessing whether an offeror’s low price reflects a lack of technical understanding or risk, offerors must be advised that the agency will conduct such an analysis.  See PricewaterhouseCoopers Public Sector LLP, B-415129.3, July 31, 2018, 2018 CPD ¶ 272 at 2.  Absent a solicitation provision so advising offerors, agencies are neither required nor permitted to conduct a price realism analysis in awarding a fixed-price or time-and-materials task order.  See id.

Here, we reject Hendall’s illogical argument that its protest ground “is not a veiled price realism challenge” because it is questioning the agency’s failure to consider IQ Solutions’ “lower proposed rates--without regard to its proposed price[.]”  Protester’s Response to Agency’s Request for Partial Dismissal, Dec. 12, 2019, at 5 (emphasis original).  Such a distinction is inapposite, given the protester’s focus on the agency’s alleged failure to consider associated technical “risks” and whether the awardee would be able “to retain the necessary experienced, qualified staff or to perform their stated technical approach.”  Protest at 14; see, e.g., CyberData Techs., supra.  Moreover, here, the TORP expressly stated that “[n]o cost or price realism will be performed.”  TORP at 49; see also AR, Tab 2d, TORP Evaluation Criteria, at 5.  Because the TORP did not permit the analysis that Hendall suggests the agency failed to perform, we have no basis to review the argument.  Therefore, this protest ground is dismissed.

Past Performance

Next, Hendall challenges various aspects of the agency’s past performance evaluation, under which both Hendall and IQ Solutions received excellent ratings. 

As an initial matter, we reject Hendall’s various challenges to the agency’s evaluation of its past performance.  The protester primarily claims that “Hendall’s work on the incumbent contract should have demonstrated to NIH that Hendall’s past performance was superior to IQ Solutions’.”  Protest at 17; see also Protester’s Comments at 7-8.  Hendall’s disagreement with the assigned past performance ratings, and its belief that its incumbency status entitles it to higher ratings or additional assessed strengths, lack merit and do not provide bases for finding the agency’s past performance evaluations unreasonable.  Science Applications Int’l Corp., B-413112, B‑413112.2, Aug. 17, 2016, 2016 CPD ¶ 240 at 5.  There is no requirement that an incumbent be given extra credit for its status as an incumbent, or that the agency assign or reserve the highest rating for the incumbent offeror.  Id. at 5-6.

The protester also claims that, “[t]hough it was given an excellent past performance rating, Hendall should have scored still higher.”  Protester’s Comments at 7.  In this regard, Hendall asserts that it was possible to receive a rating higher than excellent, based on the evaluators’ view that IQ Solutions had a slight advantage in past performance.  Protest at 18; Protester’s Comments at 7; see also AR, Tab 9, Evaluator Award Recommendation, Nov. 18, 2019, at 8.  Hendall’s assertion, however, is unsupported by the record.  As noted above, the TORP established “excellent” as the highest rating for past performance.  AR, Tab 2d, TORP Evaluation Criteria, at 4; see also AR, Tab 10, Award Determination, Nov. 19, 2019, at 2 (noting that the contracting officer considered the offerors’ equally high past performance ratings in his award decision).  Where, as here, a protester complains that its proposal should have been assigned a higher rating than the highest rating available under the terms of the solicitation, it fails to state a valid basis of protest.  See, e.g., 22nd Century Techs., Inc.‑-Recon., B‑416669.7, Nov. 14, 2019, 2019 CPD ¶ 385 at 4 (where a solicitation defines the highest possible past performance rating and the protester receives that rating, the protester’s assertion that it should have received greater credit than the solicitation contemplated fails to state a valid basis of protest); see also, e.g., CALIBRE Sys., Inc., B‑414301.3, Sept. 20, 2017, 2017 CPD ¶ 305 at 9-10.  Therefore, Hendall’s challenges to the agency’s evaluation of its past performance will not be considered further. [8]

Next, the protester argues that the agency “overrated” the relevance of three of the past performance efforts identified by IQ Solutions.  Protest at 20-24; see also Protester’s Comments at 10-12; Supp. Protest at 8.  Hendall asserts various reasons for why the agency should have considered these three efforts to be less relevant than they were; for example, Hendall contends that these efforts “did not include any work related to Alzheimer’s disease, the core of the solicited work.”  Protester’s Comments at 11.  In response, the agency explains that it considered the degree to which these efforts compared to the work sought by the TORP and “gave the awardee’s past performance the credit it deserved[,]” as reflected in its conclusions that these efforts were of moderately-high, high, and moderate relevance, respectively.[9]  MOL at 19-23; see also Supp. MOL at 28‑31.

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.  American Envtl. Servs., Inc., B-406952.2, B-406952.3, Oct. 11, 2012, 2013 CPD ¶ 90 at 5; AT&T Gov’t Sols., Inc., B-406926 et al., Oct. 2, 2012, 2013 CPD ¶ 88 at 15.  The evaluation of past performance, by its very nature, is subjective, and we will not substitute our judgment for reasonably based evaluation ratings; an offeror’s disagreement with an agency’s evaluation judgments, by itself, does not demonstrate that those judgments are unreasonable.  American Envtl. Servs., Inc., supra; Short & Assocs., B-406799, B‑406799.4, Aug. 31, 2012, 2012 CPD ¶ 251 at 4.

Based on our review of the record, we find no basis to question the agency’s evaluation of the awardee’s past performance.  First, we find no basis in the TORP that would, as the protester contends, require the agency to assign lower relevance ratings if prior efforts did not demonstrate work related to Alzheimer’s disease.  In contrast, the TORP provided that the agency’s assessment would be “the product of subjective judgment by the government,” and that the agency could consider “[r]elated work that may include, but not [be] limited to,” a list of several areas of expertise and experience, of which Alzheimer’s disease was just one example.  AR, Tab 2d, TORP Evaluation Criteria, at 3.

Second, as the record shows and as the agency explains, the evaluators considered the degree to which IQ Solutions’ past performance efforts demonstrated the work sought by the TORP.  See AR, Tab 8b, IQ Solutions Past Performance Report, Nov. 13, 2019, at 2-6; MOL at 19-23.  The agency, in its view, “gave the awardee’s past performance the credit it deserved.”  MOL at 23.  While Hendall may disagree with the agency’s judgments, it has failed to establish that those judgments were unreasonable.  In sum, we have considered all of Hendall’s various complaints regarding the agency’s past performance evaluation and find no basis to sustain the protest.

Best-Value Tradeoff Decision

Finally, Hendall contends that, “[b]ecause NIH improperly evaluated multiple aspects of Hendall and IQ Solutions’ proposals, its overall best[-]value determination is tainted.”  Protest at 31; see also Protester’s Comments at 13.  Here, as described above, the contracting officer reasonably concluded that Hendall’s proposal was superior under the technical evaluation factor; that the proposals were equal under the past performance evaluation factor; that Hendall’s advantages were not significant enough to justify its price premium; and, therefore, that the proposal submitted by IQ Solutions offered the best value to the government.  Accordingly, this allegation is also denied.  AECOM Mgmt. Servs., Inc., B-417639.2, B-417639.3, Sept. 16, 2019, 2019 CPD ¶ 322 at 15,

 

citing Laboratory Corp. of America, B‑414896.3, B‑414896.4, July 13, 2018, 2018 CPD ¶ 264 at 12-13 (agency’s best-value tradeoff decision is unobjectionable where all of the protester’s evaluation challenges are denied).

The protest is denied.

Thomas H. Armstrong
General Counsel

 

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