Zermount, 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:  Zermount, Inc.

File:  B-420174; B-420174.2

Date:  December 27, 2021

DIGEST

Agency’s evaluation and selection of a higher-rated, lower-priced proposal for award are unobjectionable where the agency’s evaluation and best-value decision were reasonable and consistent with the terms of the solicitation.

Zermount, Inc., a small business of Arlington, Virginia, protests the award of a task order to Favor TechConsulting, LLC, of Vienna, Virginia, under request for proposals (RFP) No. 70US0921R70090055, issued by the Department of Homeland Security (DHS), United States Secret Service (USSS), for enterprise cybersecurity services.  The protester contends that the agency’s evaluation of the proposals and resulting award decision were improper. 

We deny the protest.

BACKGROUND

On July 16, 2021, the agency issued the RFP as a service-disabled veteran-owned small business set-aside to firms holding the National Institutes of Health Information Technology Acquisition and Assessment Center (NITAAC), Chief Information Office, Solutions and Partners (CIO SP3) contract, pursuant to the procedures of Federal Acquisition Regulation (FAR) subpart 16.5.  Agency Report (AR), Tab 7, RFP amend. 2 at 409.[1]  The solicitation contemplated the award of a fixed-price/labor-hour/cost- reimbursement task order for a 1-year base period with four 1-year options.  Id. at 428, 438.  In general terms, the RFP sought an offeror to provide comprehensive information technology enterprise cyber security services. [2]  Id. at 415.

The RFP established that contract award would be made on a best-value tradeoff basis, considering six evaluation criteria:  (1) prior demonstrated experience; (2) technical approach:  implementation and management; (3) resumes of proposed key personnel; (4) staffing approach; (5) oral presentation; and (6) price.  Id. at 484.  These evaluation criteria are listed in descending order of importance.  Id.

The RFP also contemplated award would be made without discussions, and established that the evaluation would be conducted using a two-phased approach.  Id. at 485-486.  In the first phase, offerors would be evaluated under the prior demonstrated experience criterion, to be followed by the agency’s issuance of an “advisory down-select notification,” whereby offerors would be informed whether they were encouraged to participate in the procurement’s second phase.[3]  Id. at 478.  In the second phase, offerors would be evaluated under the remaining evaluation criteria.  Id. at 484.  The non-price criteria when combined, were significantly more important than price.  Id.  The protest here concerns the phase two evaluation of proposals. 

Three offerors, including Favor and the incumbent, Zermount, submitted phase two proposals by the August 24 closing date for receipt of proposals.  Contracting Officer’s Statement (COS) at 171.  An agency technical evaluation team (TET) evaluated the proposals using the adjectival rating scheme set forth in the RFP:  high confidence, some confidence, and low confidence.[4]  RFP at 485.  Offerors’ prices were not rated, but assessed for unbalanced pricing, reasonableness, and consistency with the offeror’s technical approach.  Id. at 487.

The agency completed its evaluation, with the final evaluation rating of the Zermount and Favor proposals as follows:

	FAVOR	ZERMOUNT
OVERALL CONFIDENCE RATING	High	Some
Prior Demonstrated Experience	Some	High
Technical Approach	High	Some
Resumes of Proposed Key Personnel	High	High
Staffing Approach	High	Some
Oral Presentation	High	Some
TOTAL PRICE	$31,913,247[5]	$33,987,487[6]

 

AR, Tab 4, Task Order Source Official Decision at 205, 208.

The source selection authority (SSA), who is also the contracting officer, received and reviewed the evaluation findings for the three offerors, including Zermount and Favor.  The SSA concluded that Favor’s lowest priced proposal represented the best value to the agency, explaining that there were no perceived benefits of the higher priced proposals which merited the additional cost.  AR, Tab 4, Task Order Selection Official Decision at 207.

The agency provided Zermount with notice of its contract award to Favor and a written debriefing on September 10.  AR, Tab 11, Zermount Notice of Award and Written Debriefing.  This protest followed.[7] 

DISCUSSION

Zermount raises numerous challenges to the agency’s evaluation of proposals and the resulting award decision.[8]  In this regard, the protester argues that the agency’s evaluation under the non‑price criteria was unreasonable, disparate in some instances, and that these errors rendered the award decision flawed.  Although we do not specifically address all of Zermount’s complaints about the agency’s evaluation of proposals and the award decision, we have fully considered all of them and find that they afford no basis on which to sustain the protest.

As stated above, the task order competition here was conducted pursuant to FAR subpart 16.5.  The evaluation of proposals in a task order competition is primarily a matter within the contracting agency’s discretion, because the agency is responsible for defining its needs and the best method of accommodating them.  NCI Info. Sys., Inc., B‑418977, Nov. 4, 2020, 2020 CPD ¶ 362 at 5; Engility Corp., B-413120.3 et al., Feb. 14, 2017, 2017 CPD ¶ 70 at 15.  In reviewing protests of an award in a task order competition, we do not reevaluate proposals, but examine the record to determine whether the evaluation and source selection decision are reasonable and consistent with the solicitation’s evaluation criteria and applicable procurement laws and regulations.  DynCorp Int’l LLC, B-411465, B-411465.2, Aug. 4, 2015, 2015 CPD ¶ 228 at 7.  A protester’s disagreement with the agency’s judgment regarding the evaluation of proposals or quotations, without more, is not sufficient to establish that an agency acted unreasonably.  Engility Corp., supra at 16; Imagine One Tech. & Mgmt., Ltd., B‑412860.4, B-412860.5, Dec. 9, 2016, 2016 CPD ¶ 360 at 4-5. 

Technical Evaluation of Favor’s Proposal

Zermount contests the rating of high confidence the agency assigned Favor’s proposal under the resumes of proposed key personnel evaluation criterion.  Comments and Supp. Protest at 2.  The protester contends that Favor proposed two key personnel--the security compliance services project lead and the Federal Identity, Credential, and Access Management (ICAM) architect/lead--who lacked the security clearance required at the time of award of the task order.  Id. at 2-3.

The agency responds that the solicitation states that “[s]uitability assessment and/or security clearance of personnel assigned to the project shall be in place on the effective date of contract award,” and argues therefore that security clearances are not required at the time of award.  Supp. Memorandum of Law (MOL) at 1 citing RFP at 439 (emphasis added); Supp. AR, Tab 14, Decl. of Chief Information Security Officer at 633.  The agency contends that this means that a contractor‑employee with a suitability assessment in place is sufficient to meet the terms of the solicitation.  The agency also points out that no part of section M of the RFP commits the agency to evaluate the key personnel resumes for strict compliance with the statement of work.  Supp. MOL at 2.  To this end, the agency notes that the solicitation regarding Resumes of Proposed Key Personnel, M.2.3 Phase II, Criterion 3, states the following:

The Government will assess the extent to which the Offeror identifies and commits Key Personnel with appropriate experience and qualifications and will be assigned a confidence rating.  Resumes will be evaluated based on the currency, quality and depth of experience of individual personnel working on similar projects (size, scope, magnitude, duration, and complexity). 

RFP at 486 (emphasis added).  The qualifications of each key personnel position are set forth in section 13 of the statement of work (SOW).  RFP, SOW at 307-309.  Thus, the agency states that it evaluated the key personnel resumes for the experience and qualifications listed in section 13 of the SOW, and that proof of security clearance was not a requirement under this section for any of the key personnel positions.  Supp. MOL at 3.  Thus, according to the agency, Zermount’s challenge that Favor’s personnel will not comply with the SOW is a matter of contract administration.  Id. at 4. 

We find reasonable the agency’s contention that the solicitation provision related to security clearances was limited to contract performance, and thus, was a matter of contract administration.  We also agree with the agency that the solicitation did not expressly require offerors to demonstrate that proposed key personnel would have a security clearance at the time of award.  We therefore find no reason to sustain the protest on this basis. 

Zermount also argues that the resume submitted for Favor’s program manager did not include any reference to demonstrated experience with National Institute of Standards and Technology (NIST) Cybersecurity Framework, FISMA 2002, or the Federal Information Security Modernization Act (FISMA) of 2014.  Comments and Supp. Protest at 4; AR, Tab 12, Favor’s Technical Proposal, Vol. I at 598-599. 

The agency responds that this individual’s work with Federal Emergency Management Agency’s cybersecurity requirements--i.e., his previous work supporting the Cybersecurity and Infrastructure Security Agency, as well as other DHS systems over the past 11 years--demonstrates that this individual has the required experience with NIST and FISMA.  Supp. MOL at 4-5; AR, Tab 12, Favor’s Technical Proposal, Vol. I at 598. 

In response to the protester’s allegations, the agency submitted a declaration from its Chief Information Security Officer, one of the evaluators on this procurement.  Supp. AR, Tab 14, Decl. of Chief Information Security Officer.  This individual states that the evaluators knew through their experience in the cybersecurity area that compliance with DHS 4300A, a DHS sensitive systems handbook, was mandatory in the current role of Favor’s proposed project manager overseeing the achievement of the “authority to operate” process and managing the security requirements for a DHS system.  The agency explains that the evaluators also knew that the DHS 4300A handbook implements NIST 800-53, as part of the NIST framework, which incorporates the FISMA requirements of 2002 and 2014.  Therefore, the evaluators concluded, that the familiarity of Favor’s proposed project manager with the DHS 4300a handbook, necessarily demonstrates experience and knowledge of NIST and FISMA.  Supp. MOL at 4; Supp. AR, Tab 14, Decl. of Chief Information Security Officer at 632-633. 

Similarly, Zermount also contends that Favor’s security compliance project lead’s resume is unacceptable because it failed to specifically state that this individual possessed the required experience/knowledge with DHS 4300A.  Comments and Supp. Protest at 5.  The protester contends that generalized NIST experience in non-DHS component agencies does not demonstrate experience/knowledge with the specific techniques and procedures for implementing the requirements of the DHS information security program for DHS sensitive systems.  Zermount’s Supp. Comments at 7.

The agency again responds that the evaluators may use their knowledge and experience to discern whether a proposed key person has the required experience.  Comments and Supp. Protest at 4.  The agency states as well that according to this individual’s resume, this person “supports the USDA [United States Department of Agriculture] with its FISMA compliance activities in daily security management and administration.”  AR, Tab 12, Favor’s Technical Proposal at 600.  The agency maintains that this individual’s “experience with FISMA compliance at USDA suggests he would have the requisite knowledge of the artifacts that are the basis of DHS MD [Management Directive] 4300A.”  Supp. AR, Tab 14, Decl. of Chief Information Security Officer at 634. 

As stated above, an agency is responsible for both defining its needs and determining the best method of accommodating them.  Engility Corp., supra at 15.  We find that the agency reasonably determined that Favor’s program manager and security compliance project lead met the solicitation’s requirements for their respective positions based on the experience gained in their previous positions.  An agency may properly use information known by its own evaluators to aid in the evaluation of proposals, and is not bound by the “four corners” of an offeror’s proposal.  CAE USA, Inc., B-414259.6, B‑414259.7, Dec. 19, 2017, 2017 CPD ¶ 386 at 11 (agency properly used evaluator knowledge of the night vision method of instruction course to evaluate and determine that the awardee’s division director met the required hours of night vision goggle time).  We find no basis to question the agency’s judgment in this regard; the offeror’s disagreement with the agency’s analysis, without more, does not provide a basis to sustain the protest.  STG, Inc., B-405101.3 et al., Jan. 12, 2012, 2012 CPD ¶ 48 at 7. 

Technical Evaluation of Zermount’s Proposal 

Next, Zermount challenges the agency’s technical evaluation of its proposal in numerous instances.  We have reviewed all of Zermount’s contentions concerning the agency’s evaluation of its proposal, and find the agency’s evaluation to be reasonable in this regard.  We discuss representative examples, as follows.

For example, Zermount contests the agency’s evaluation of its proposal under the technical approach criterion and the assignment of a “some confidence” rating.  The protester contends that the agency unreasonably assigned it three unwarranted confidence decreasers under this evaluation criterion.  Protest at 8; Comments and Supp. Protest at 8; AR, Tab 3, Task Oder Evaluation Report at 189-190.

The protester first argues that the agency unreasonably assigned it a confidence decreaser for alleged “typos in success statements and technical approach.”  Protest at 8 quoting AR, Tab 3, Task Order Evaluation Report at 189.  Zermount contends that the assignment of this confidence decreaser is unreasonable because there is no evaluation criterion concerning spelling and typographical errors, and the agency has not demonstrated that the typographical errors prevented it from understanding Zermount’s proposal.  Protest at 8; Comments and Supp. Protest at 8. 

In response, the agency contends that a confidence decreaser under this evaluation criterion was warranted because such errors exemplified a lack of attention to detail and represented a potential performance risk.  COS at 174.  The agency states that these errors undermined the clarity of Zermount’s proposal and were viewed as an indicator that government intervention will be required for successful performance.  Id. at 177.

Here, we find that the agency reasonably assigned a confidence decreaser due to typographical errors in Zermount’s proposal--a matter which the protester essentially concedes.  Protest at 8; Comments and Supp. Protest at 8.  It is an offeror’s 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.  See, e.g., International Med. Corps, B‑403688, Dec. 6, 2010, 2010 CPD ¶ 292 at 8; see also SOURCECORP BPS Inc., B‑406792, Aug. 24, 2012, 2012 CPD ¶ 250 at 9 (agency reasonably concluded typographical errors and mistakes in protester’s proposal, collectively, constituted a weakness).

As another example, Zermount contests the confidence decreaser assigned to its proposal under the technical approach criterion for “ICAM operating [without] finalized strategic plan.”  Protest at 8 quoting AR, Tab 3, Task Order Evaluation Report at 189.  The protester contends that the agency misread its proposal, and failed to establish how Zermount’s reference to a related work product, prepared under the incumbent contract, somehow decreases the government’s confidence in Zermount’s capabilities.  Protest at 8; Comments and Supp. Protest at 8.  Zermount argues that its experience as the incumbent contractor means that it possessed “a keen understanding” of the agency’s ICAM services, for which it should have received credit.  Id.

The agency responds that Zermount made a conclusory mention of a previously developed, preliminary draft of the firm’s ICAM strategic plan, stating that the plan contains goals, objectives, services, and policies, but the protester did not discuss the specifics of any of these items in its proposal.  COS at 178.  In this regard, Zermount’s proposal provided the following:

We provide, improve, and mature our ICAM services based on the same methodology and approach used since we stood up the program in collaboration.  Our ICAM team developed the USSS ICAM Strategic Plan (Draft) which defines goals, objectives, services, policies, processes, procedures, solutions, technologies, maturity model roadmap, and challenges for the functional area and the overall agency regarding ICAM. 

AR, Tab 9, Zermount’s Proposal at 506.  The TET viewed this high-level description to be conclusory and lacking sufficient detail.  COS at 178.  The agency found this aspect of the proposal to be an indicator of Zermount’s lack of accuracy, which negatively affected the agency’s confidence in the proposal.  As a result, the agency assigned Zermount’s proposal a confidence decreaser.  Id.

We find that the agency reasonably assigned Zermount’s proposal a confidence decreaser under this criterion.  Where a proposal is unclear, the offeror risks having such an inadequately written proposal evaluated unfavorably.  Aerostar Perma-Fix TRU Servs., LLC, B‑411733, B-411733.4, Oct. 8, 2015, 2015 CPD ¶ 338 at 8.  Agencies are not required to infer information from an inadequately detailed proposal, even if the offeror is the incumbent.  INNOVIM, LLC, B-419912, B-419912.2, Sept. 21, 2021, 2021 CPD ¶ 331 at 8.  In our view, the agency reasonably found that a conclusory reference to a previously‑developed plan, without more explanation, does not establish whether that plan will satisfy the solicitation’s requirements. 

Zermount also contests the agency’s assignment of a confidence decreaser under the technical approach criterion.  The agency based its assessment on an “[i]naccuracy- [in Zermount’s proposal since] ICAM maturity is not leading the department,” and Zermount “does not have effective, or even immature, role governance in place.”  Protest at 9 quoting AR, Tab 3, Task Order Evaluation Report at 190.  The protester states that its proposal makes clear that it is leveraging its incumbent experience with the agency’s ICAM program to demonstrate its capabilities.  Comments and Supp. Protest at 9. 

The agency responds that the TET disagreed with Zermount’s assertion that USSS ICAM maturity is “leading the department,” when, in the TET’s view, it is not.  AR, Tab 3, Task Order Evaluation Report at 190.  The agency notes that based on RFP section M2.2(b), the TET evaluated “the extent to which the Offeror understands the problems, issues, constraints, organizations and system(s) involved.”  The agency states further that Zermount’s inaccurate and misleading statements about USSS ICAM maturity leading the department suggested that the firm did not understand the problems, issues, organizations and/or systems involved, thereby introducing performance risk.  COS at 178. 

We find no basis to sustain this protest allegation.  In this regard, we find reasonable the agency’s conclusion that the misstatement in Zermount’s proposal showed that it might not understand the work involved, and thus, introduced a performance risk.  Thus, we see no reason to question the agency’s assignment of a confidence decreaser here.  Zermount’s disagreement with the agency’s conclusion, without more, does not provide our Office with a reason to question the agency’s evaluation in this regard. 

Alleged Unequal and Disparate Evaluation

Zermount contends that the evaluation of offerors’ proposals was unequal and disparate.  Specifically, the protester argues that in various instances the agency’s evaluation was even-handed when assigning strengths to Favor’s proposal, but not so when assigning strengths to Zermount’s proposal.  We have fully considered all of the protester’s arguments and conclude that none provide a basis to sustain the protest.  We discuss a few representative examples below.

For example, Zermount contends that the agency held Zermount to a stricter standard under the staffing approach criterion than Favor.  Under the staffing approach criterion, the agency was required to evaluate the degree to which the offeror “demonstrates the ability to recruit, hire and retain and develop qualified staff.”  RFP at 486-487.  Under this criterion, Zermount’s proposal received a rating of some confidence, but Favor’s proposal received a rating of high confidence.  AR, Tab 4, Task Order Selection Official Decision at 208.  In this regard, Zermount argues that the agency give Favor a confidence increaser under the staffing approach criterion for its training budget and mentorship program to foster employee development, but that Zermount did not receive a similar confidence increaser.  Comments and Supp. Protest at 7.  Zermount notes that its staffing approach proposal provided a comprehensive list of nine training and educational initiatives, which includes a budget of “[DELETED] per employee annually for training, education, [and] conferences,” individualized training, and tailored training goals and progress reviews every six months.  Comments and Supp. Protest at 7 quoting AR, Tab 9, Zermount’s Proposal at 520-521. 

Agencies must treat all offerors equally and evaluate their proposals evenhandedly against the solicitation’s requirements and evaluation criteria.  Native Energy & Tech., Inc., B-416783 et al., Dec. 13, 2018, 2019 CPD ¶ 89 at 4.  However, when a protester alleges unequal treatment in a technical evaluation, it must show that the differences in the evaluation did not stem from differences between the proposals.  CACI, Inc.-Federal, B-419371.3, Feb. 26, 2021, 2021 CPD ¶ 147 at 5; IndraSoft, Inc., B-414026, B‑414026.2, Jan. 23, 2017, 2017 CPD ¶ 30 at 6.  Accordingly, to prevail on an allegation of disparate treatment, a protester must show that the agency unreasonably downgraded its proposal for features that were substantively indistinguishable from, or nearly identical to, those contained in other proposals.  Battelle Mem’l Inst., B-418047.3, B-418047.4, May 18, 2020, 2020 CPD ¶ 176 at 5.

In response, the agency points out that it did in fact include a confidence increaser comment for Zermount under the staffing approach criterion for the proposal’s “[d]ocumented recruitment and retention strategy including professional development.”  Supp. MOL at 5 quoting AR, Tab 3, Task Order Evaluation Report at 190.  The agency also notes, however, that it included a confidence decreaser under the staffing approach criterion for Zermount.  The agency maintains that it assigned this confidence decreaser because Zermount did not provide details regarding how and when its employees would be using these professional development benefits, and thus presumably would be unavailable to work on this contract.  The agency also expressed a concern that it could not determine what certifications would result from these benefits so that the agency could ensure that the certifications were relevant to the contract.  Id.

In contrast, the agency explains that Favor’s proposal “[a]llocate[d] a training budget and mentorship program to foster employee development,” and “[d]ocumented a well‑defined recruitment and retention strategy that yielded tangible results.”  AR, Tab 3, Task Order Evaluation Report at 198.  The agency also states that Favor submitted a more complete proposal by providing the outcomes of its program.  Supp. AR, Tab 14, Decl. of Chief Information Security Officer at 634.

As such, the difference in the assignment of confidence increasers is the result of differences in the offerors’ proposals and not disparate treatment.  Given the inherently subjective nature of the evaluators’ judgments at issue here, we conclude that it was within the agency’s discretion to assign a confidence increaser to one of these proposals and not the other.  UltiSat, Inc., B-416809 et al., Dec. 18, 2018, 2019 CPD ¶ 6 at 9-10.  We find the agency’s evaluation to be reasonable in this regard. 

The protester also asserts that the agency’s assessment of a confidence increaser for Favor’s “[e]xperience with staffing [DELETED] positions in under [DELETED] days” is another example of disparate treatment.  Comments and Supp. Protest at 7 quoting AR, Tab 3, Task Order Evaluation Report at 198.  In contrast, Zermount points out that it did not receive a similar confidence increaser for its experience “hiring and on-boarding of [DELETED] resources nationwide at a minimum Secret level in less than [DELETED] weeks to complete a successful transition.”  Comments and Supp. Protest at 7 quoting AR, Tab 9, Zermount’s Proposal at 520.

Based upon our review of the record, we agree with the agency’s contention that the assignment of a confidence increaser to Favor was warranted under the staffing approach criterion, as the firm staffed at least [DELETED] more positions than Zermount did in a similar time period.  Supp. MOL at 6.  Thus, we find the agency’s evaluation to be reasonable and not unequal, in that the differing evaluation results reflect differences in the proposals.  Accordingly, this protest ground is denied.  UltiSat, Inc., supra at 9-10. 

Source Selection Decision

Last, Zermount challenges the agency’s source selection decision.  The protester argues the SSA’s decision was based on an unreasonable evaluation of offerors’ proposals.  Protest at 14-15.  The protester also contends that the SSA failed to sufficiently articulate a rationale for the best-value decision.  Id. at 15. 

As described above, the record does not support Zermount’s challenges to the evaluation.  Accordingly, we find no merit to Zermount’s challenges to the selection decision that are based on those alleged errors.  22nd Century Techs., B-416669.5, B‑416669.6, Aug. 5, 2019, 2019 CPD ¶ 285 at 10. 

We also find that the record demonstrates that the SSA sufficiently articulated the qualitative differences in the proposals when making the source selection decision.  In this regard, the record shows that the SSA reviewed the results of the evaluation and considered the qualitative differences between proposals.  See AR, Tab 4, Task Order Selection Official Decision.  The SSA found that Favor’s proposal, which was lower-priced and higher-rated, represented the best value to the government and selected Favor for task order award.  Id. at 208.  Other than expressing its general dissatisfaction with the conclusion, the protester has not provided our Office with a basis to disturb the agency’s source selection decision.  We therefore find that the agency’s source selection decision was reasonable and consistent with the solicitation’s evaluation criteria, as well as adequately documented.

The protest is denied.

Edda Emmanuelli Perez
General Counsel

 

---