Innovative Management & Technology Approaches, Inc.
B-418823.3,B-418823.4: Jan 8, 2021
- Full Report:
Innovative Management & Technology Approaches, Inc. (IMTAS), of Reston, Virginia, protests the decision by the Department of Commerce, U.S. Patent and Trademark Office (USPTO) to establish a blanket purchase agreement (BPA) with, and issue two call orders to, Epsilon, Inc., of Weaverville, North Carolina, under request for quotations (RFQ) No. 1333BJ19Q00280146, issued for support of service desk operations. IMTAS argues that Epsilon's quotation was unacceptable because it included an assumption that took exception to material solicitation requirements; that the agency conducted impermissible and unequal discussions when it allowed Epsilon to remove the assumption from its quotation prior to award; and that the agency unreasonably failed to assess a weakness to Epsilon's quotation.
We sustain the protest.
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.
Matter of: Innovative Management & Technology Approaches, Inc.
File: B-418823.3; B-418823.4
Date: January 8, 2021
 The RFQ was amended three times; this decision cites to the most recent amendment. In addition, this decision cites to the Adobe PDF page number of the RFQ.
 The RFQ stated that the agency intended to establish a single BPA but that it reserved the right to establish multiple BPAs. RFQ at 54-55.
 The technical approach and management approach factors were rated as either superior, satisfactory, or unsatisfactory; the past performance factor was rated as superior, satisfactory, unsatisfactory, or neutral. RFQ at 66.
 IMTAS also argued that the agency should have assessed a weakness to Epsilon’s quotation because its key personnel failed to meet the minimum education requirements, and that the agency unreasonably evaluated IMTAS’s quotation under the management approach factor. The agency provided a detailed response to these assertions and the protester did not respond to the agency’s position; we therefore find that IMTAS abandoned these arguments. The Green Tech. Group, LLC, B-417368, B‑417368.2, June 14, 2019, 2019 CPD ¶ 219 at 8.
 Examples of SLAs include maintaining an average answer speed of 1 minute or less; responding to voice messages within 2 business hours of receipt; and resolving incidents on the first call or contact with the service desk 75 percent of the time. RFQ at 46-47.
 The SSA noted that FAR 8.404 addresses the issue of a contractor’s obligation to perform on a labor-hour contract up to the amount obligated to the call by requiring a ceiling price for each labor hour order. AR, Tab I08, SSA Award Determination at 7.
 The SSA identified statements from Epsilon’s quotation that it claimed mitigated any concerns with the assumption; we address these statements below.
 The agency supports this argument by citing to the requirement in FAR 8.404 that any labor-hour call order must include a ceiling price. MOL at 9 (citing FAR 8.404(h)(ii)).
 The agency also argues that because an increase to the ceiling price would require a contract modification, Epsilon’s assumption is a contract administration issue over which GAO has no jurisdiction. MOL at 14. Because we find that the assumption does not merely reflect Epsilon’s acknowledgment of the ceiling price for labor-hour contracts required by FAR 8.404, we reject this argument.
 In addition to those discussed in this decision, the SSA cited to other sections of Epsilon’s quotation and claimed those sections mitigated concerns with the assumption. We have reviewed all of the sections cited to by the SSA and find that none refute or withdraw the assumption and therefore do not mitigate these concerns.
 The agency contends that the exchange with Epsilon was to “clarify conflicting parts of its quote” and that the agency “received those clarifications with the removal of the anomaly and validated the award.” MOL at 19-20. Clarifications are defined as “limited exchanges” that agencies may use to allow vendors to clarify certain aspects of their proposals (or in this case quotations) or to resolve minor or clerical mistakes. See
FAR 15.306(a)(2); Arrington Dixon & Assocs., Inc., supra. Here, Epsilon was not resolving a minor or clerical mistake, but was allowed to revise its quotation to make it acceptable by removing an expressly stated exception to the solicitation’s requirements. This clearly constitutes discussions, not clarifications.
 The agency claims that IMTAS’s protest is an untimely challenge to the terms of the solicitation because section 12.1 put vendors on notice that the agency could communicate with only one vendor. Because we conclude that a reasonable reading of section 12.1 would not lead a vendor to think that the agency reserved the right to engage in unequal discussions with only one offeror, we reject the agency’s argument that IMTAS’s protest is an untimely challenge to the terms of the solicitation.
 The agency raises a number of other arguments as to why the SSA believed that communication with Epsilon would be advantageous to the agency. For example, the agency asserts that the SSA wanted to expeditiously complete this procurement, and was concerned that any reopening of quotations would be unfair to Epsilon because IMTAS knew Epsilon’s price as a result of IMTAS’s prior protest. Supp. MOL at 9-11. None of these arguments overcome the fact that Epsilon’s quotation was unacceptable as submitted, nor do they provide a basis for the agency to conduct unequal discussions with only Epsilon.
 The agency raises another argument regarding the language in section 12.1 which stated that vendors could be eliminated from consideration without further communication if their technical or pricing quotations were not among those considered most advantageous to the government based on the best-value determination. Supp. MOL at 12. Based on this language, the agency contends that after the best-value determination, IMTAS was effectively eliminated from consideration and that therefore the agency was free to engage in communication with only Epsilon. Id. at 12-13. This argument fails for the same reasons we have explained above: the best-value determination was fundamentally flawed because it unreasonably determined that Epsilon’s quotation was the best value despite the quotation taking exception to material solicitation requirements.
 The agency argues that our decision in Gunnison Consulting Group, Inc. B-418876 et al., Oct. 5, 2020, 2020 CPD ¶ 344 also supports its communications with Epsilon. Supp. MOL at 5-6. Gunnison involved the same solicitation language as in VariQ,and we again rejected the protester’s challenge to the agency’s communications with only the apparent awardee. Gunnison Consulting Group, Inc. B-418876 et al., Oct. 5, 2020, 2020 CPD ¶ 344 at 13-14. Gunnison is distinguishable for the same reasons as VariQ that we discuss above and we therefore conclude that our decision in Gunnison likewise does not support the agency’s actions here.
 IMTAS also alleged that the agency unreasonably failed to assess strengths to certain aspects of its quotation under the technical approach factor. Protest at 12-18. For example, IMTAS’s quotation described how its staffing approach contributed to it achieving a first call resolution rate of 80 percent, which exceeded the minimum SLA requirement of 75 percent. Id. at 14-15. A strength was defined as “[a] proposal element that goes beyond the requirement . . . and is determined to be readily implementable with minimal or no revision after award.” AR, Tab I02, Evaluation Plan, amend. 0002, at 6.
In response, the agency did not address this specific aspect of IMTAS’s quotation but argued that its evaluation was reasonable because the evaluation record showed that the agency concluded that IMTASs quotation generally met the requirements for this factor. Thus, neither the contemporaneous evaluation documents nor the agency’s response to IMTAS’s protest contain any meaningful discussion of whether this particular aspect of IMTAS’s quotation, which purportedly exceeded an SLA requirement and was readily implementable, warranted a strength. If the agency elects to conduct discussions and solicit revised quotations, it may wish to consider whether this, or any other aspects of IMTAS’s quotation, exceed the solicitation’s requirements and should be assessed a strength.