Dev Technology Group, Inc.

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. The entire decision has been approved for public release.

Decision

Matter of:  Dev Technology Group, Inc.

File:  B-420230; B-420230.2

Date:  January 5, 2022

DIGEST

1.  Agency reasonably assessed a risk in protester’s proposal based on protester’s reliance on a less-senior labor mix than the labor mix suggested by the solicitation.

2.  Protest that during oral presentations, the agency failed to engage in an “interactive dialogue” with the protester regarding its proposed labor mix is denied where agency subsequently conducted discussions and provided the protester an opportunity to fully address its proposed labor mix. 

3.  Where the solicitation specifically provided for a 3-month transition period, there is no merit in protester’s assertion that the non-incumbent awardee’s proposal failed to comply with the solicitation requirements regarding task order performance on “day one” after award.

Dev Technology Group, Inc. (Dev Tech), of Reston, Virginia, protests the award of a task order by the Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE), to Harmonia Holdings Group, LLC, of Blacksburg, Virginia, pursuant to request for proposals (RFP) No. 70CTD021R00000013, to provide various information technology (IT) services.[1]  Dev Tech challenges multiple aspects of the agency’s evaluation and source selection process, including:  the agency’s assessment of risk in Dev Tech’s proposed technical approach; the agency’s conduct of oral presentations; and Harmonia’s compliance with the solicitation provisions related to transition. 

We deny the protest. 

BACKGROUND

On July 15, 2021, pursuant to subpart 16.5 of the Federal Acquisition Regulation (FAR), the agency issued the RFP as a small business set-aside to holders of the Department of the Army’s Information Technology Enterprise Solutions - 3 Services (ITES-3S) multiple-award indefinite-delivery, indefinite-quantity (IDIQ) contract.  Of relevance to this protest, the solicitation:  identified labor categories the agency believed to be necessary for task order performance; stated that the contractor “shall provide qualified experienced personnel . . . [and] deliver . . . technology solutions developed in a test-driven approach that enables ICE with highly effective quality applications”; and advised offerors that the agency’s “resourcing estimates . . . are based on . . . the following ITES-3S labor category resource mix (75% Senior Staff and 25% Intermediate).”[2]  AR, Tab 2, PWS at 7. 

The solicitation contemplated issuance of a task order for a 12-month base period and four 1-year option periods, and provided for source selection based on a best-value tradeoff between price[3] and the following equally weighted non-price evaluation factors:  management approach/staffing plan; previous experience; and technical approach (via oral presentation).[4]  AR, Tab 2, RFP Instructions at 1, 9-11. 

With regard to the source selection process, the solicitation contemplated two phases.  Under phase I, offerors were to submit written proposals for evaluation under the first two non-price factors--management approach/staffing plan and previous experience.  Following the agency’s evaluation of proposals under those factors, the solicitation provided that the agency would invite the most-highly rated offerors to participate in phase II by providing their technical approaches through recorded oral presentations.  Id. at 6, 9.  The solicitation further provided that each offeror’s oral presentation would consist of three segments:  (1) a 90-minute presentation by the offeror;[5] (2) a 15‑minute “recess & government caucus”; and (3) a 30-minute interview during which the offeror would respond to government-provided questions.[6]  Id. at 9. 

On or before the July 28, 2021 closing date for receipt of proposals, initial proposals were submitted by eight offerors, including Dev Tech and Harmonia.  Following the agency’s evaluation of those proposals, the agency invited Dev Tech and Harmonia to make oral presentations.[7]  Prior to the oral presentations, the agency provided questions to each offeror that were to be addressed during the 30-minute portion of the oral presentation.[8]  AR, Tab 16, Oral Presentation Interview Questions (Dev Tech); Tab 17, Oral Presentation Interview Questions (Harmonia).  During the 30-minute interview portion of the oral presentations, the agency did not engage in further dialogue with any offeror. 

During Dev Tech’s oral presentation, it became clear to the agency that, although the solicitation suggested a labor mix consisting of 75 percent senior staff and 25 percent intermediate staff,[9] Dev Tech’s proposed technical approach relied on a less‑experienced labor mix, including “associate” staff.[10]  AR, Tab 46, Contracting Officer’s Statement at 25. 

Following completion of the oral presentations, the agency documented its evaluation of each initial proposal and determined that it would be necessary to conduct discussions.  The agency’s discussions with Dev Tech included the following statement and request:

Junior staff were not identified in the PWS.  Demonstrate that Dev Tech’s proposal is in compliance with the PWS, specifically the labor resource mix (75% Senior Staff and 25% Intermediate).

AR, Tab 32, Discussions (Dev Tech) at 3. 

On or before September 3, Dev Tech and Harmonia each submitted its final proposal revision (FPR).  In responding to the agency’s concerns regarding its proposed labor mix, Dev Tech acknowledged that the agency’s staffing estimate reflected a labor mix of 75% senior staff and 25% intermediate staff, and did not anticipate any lower-level staff.  AR, Tab 34, Dev Tech FPR at 2-3.  Nonetheless, Dev Tech continued to propose “associate labor categories,” which Dev Tech acknowledged “do not qualify as ‘Intermediate’ on the Army ITES-3S contract” because they “do not have the 5 years of experience required.”[11]  Id.  In its FPR, Dev Tech stated that its proposed labor mix reflected its “current team,” and asserted that its proposed staffing approach “provides much less risk to ICE than bringing in new resources.”[12]  Id. at 3. 

Thereafter, the FPRs were rated as follows: 

	Harmonia	Dev Tech
Mgmt. Approach/Staffing Plan	High Confidence	High Confidence
Previous Experience	High Confidence	High Confidence
Technical Approach	High Confidence	Some Confidence
Evaluated Price	$73,042,681	$79,935,875

 

AR, Tab 38, Source Selection Decision Document at 15. 

In assigning a rating of some confidence to Dev Tech’s proposal under the technical approach evaluation factor, the agency referenced Dev Tech’s proposal to perform the task order using a more junior mix of personnel than the solicitation suggested, stating:

The justification Dev Tech provided for proposing Associate labor categories did not mitigate the risk.  The introduction of new associate (Junior) labor categories by [Dev Tech] is a risk to the Government because they are propos[ed]  junior level categories that we believe do not typically have the education or experience to provide adequate support for this task.  This directly impacts the velocity and output of the agile team.  This would also impact the performance of senior and intermediate resources because they would provide additional support to junior resources.  Overall, this impacts the ability to perform successfully on the task order. 

Id. at 29.

In contrast, in assigning ratings of high confidence to Harmonia’s proposal under each of the non-price evaluation factors, the agency noted that Harmonia’s proposal:  “provide[d] a comprehensive approach for system enhancements and break-fix support”; contained multiple specifically identified benefits; and “provide[d] the labor mix in alignment with the PWS, 75% senior staff and 25% intermediate staff.”  Id. at 15-16.  The agency also noted that Harmonia’s proposed price was more than 8 percent lower than Dev Tech’s proposed price.  Id.  Based on the evaluated risks and benefits in the two offerors’ proposals, the agency determined that it “has more confidence in Harmonia Holding’s ability to successfully perform this requirement than it has in Dev Tech’s ability,” and concluded that Harmonia’s proposal “offers the best value to the Government.”  Id.

On September 27, the task order was issued to Harmonia.  This protest followed.[13]

DISCUSSION

DevTech challenges multiple aspects of the agency’s evaluation and source selection process, including:  the agency’s assessment of risk regarding Dev Tech’s proposed labor mix; the adequacy of oral presentations; and Harmonia’s compliance with the solicitation provisions related to transition.[14]

Labor Mix

First, Dev Tech complains that the agency unreasonably assessed a risk in Dev Tech’s proposal related to its proposed labor mix.  Protest at 12-15.  Noting that the solicitation did not mandate the labor mix reflected in the agency’s staffing estimate, Dev Tech repeats the arguments it presented to the agency in its FPR regarding reliance on “existing personnel”; asserts that its FPR “minimized” the number of proposed junior staff; and maintains that its approach enabled Dev Tech to “seamlessly continue to provide support.”  Id.  Accordingly, Dev Tech protests that the agency’s risk assessment was unreasonable.

The agency responds that Dev Tech was expressly advised during discussions of the agency’s concern regarding its proposed labor mix.  Nonetheless, rather than proposing more experienced staff, Dev Tech chose to continue to propose reliance on its current staffing, which included junior personnel.[15]  AR, Tab 46, Contracting Officer’s Statement at 15.  The agency further explains that the task order at issue here includes requirements for staff with more experience and/or education than had been required under Dev Tech’s prior task order;[16] accordingly, the agency states that it “anticipated vendors would propose a more experienced and educated labor mix.”  Id. at 21-27.  Overall, the agency states that, in response to the agency’s identification of its concern regarding Dev Tech’s proposed labor mix, Dev Tech “chose to advance [its] own agenda . . . instead of meeting the needs of the Government.”  Id at 24.  In this regard, the agency states that it considered Dev Tech’s justification for proposing a more-junior labor mix, but was unpersuaded that Dev Tech’s FPR eliminated the risk associated with that approach.  Id. at 21-27.

A procuring agency is responsible for defining its needs and identifying the best method for accommodating them.  See, e.g., U.S. Textiles, Inc., B-289685.3, Dec. 19, 2002, 2002 CPD ¶ 218 at 2.  In reviewing a protest challenging the reasonableness of an agency’s assessments regarding the best approach to meet its needs, our Office will not substitute our judgment for that of the agency; rather, we will examine the record to determine whether the agency’s judgments were reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations.  See, e.g., Del-Jen Educ. & Training Grp./Fluor Fed. Sols. LLC, B-406897.3, May 28, 2014, 2014 CPD ¶ 166 at 8; FPM Remediations, Inc., B-407933.2, Apr. 22, 2013, 2013 CPD ¶ 107 at 3.  A protester’s disagreement with the agency’s evaluation judgments, without more, is insufficient to establish that an evaluation was improper or lacked a reasonable basis.  Lanmark Tech., Inc., B-408892, Dec. 19, 2013, 2013 CPD ¶ 295 at 5.

Here, based on our review of the record, we find nothing unreasonable in the agency’s assessment of a risk in Dev Tech’s proposed technical approach to rely on less-senior staff than the agency judged to be necessary.  As discussed above, the record supports the agency’s conclusion that the requirements of the task order at issue here differed from the requirements of Dev Tech’s prior task order, and that the labor category qualifications of the underlying IDIQ contract were “more stringent” than those under the prior contract.  Further, Dev Tech was explicitly advised of the agency’s concern during discussions; nonetheless, Dev Tech’s FPR failed to persuasively respond to those concerns.  In its protest, Dev Tech continues to assert that the labor mix it proposed was appropriate, and that the agency’s assessment of a risk in this regard was unreasonable.  Based on the record here, Dev Tech’s protest merely reflects its ongoing disagreement with the agency’s judgment on that issue, and its protest is denied.

Oral Presentations

Next, Dev Tech complains that the agency failed to comply with the procedural provisions of the solicitation regarding oral presentations in that the agency did not engage in an “interactive dialogue” with Dev Tech.  Protest at 16.  Dev Tech asserts that, if it had been advised of the agency’s concern regarding its proposed labor mix during its oral presentation, Dev Tech “could have answered each and every concern with a detailed explanation of how the current staff were exceeding expectations and performing at the highest level.”  Dev Tech Comments/Supp. Protest, Nov. 15, 2021, at 16.

The agency responds that Dev Tech’s protest is untimely and, in any event, in light of the agency’s discussions with Dev Tech following oral presentations, Dev Tech was not prejudiced.[17]  Specifically, the agency notes that, to the extent Dev Tech’s protest challenges the agency’s alleged failure to comply with the solicitation’s procedural provisions regarding oral presentations, Dev Tech was aware of that alleged flaw at the time it submitted its FPR--yet, waited nearly 30 days to protest that matter (following notification of its non-selection for award).  Accordingly, the agency maintains that Dev Tech’s protest challenging the agency’s compliance with the stated procedures for conducting oral presentations is not timely raised. 

Further, the agency responds that, to the extent Dev Tech’s protest is challenging the substance of the agency’s evaluation and source selection decision due to the alleged procedural flaw, Dev Tech has failed to establish any prejudice because it was afforded a full opportunity to address the agency’s concerns.  More specifically, the agency notes that Dev Tech was asked to address the agency’s concerns regarding Dev Tech’s proposed labor mix during the discussions the agency subsequently conducted.  As noted above, in its discussions with Dev Tech, the agency specifically stated: 

Junior staff were not identified in the PWS.  Demonstrate that Dev Tech’s proposal is in compliance with the PWS, specifically the labor resource mix (75% Senior Staff and 25% Intermediate).

AR, Tab 32, Discussions (Dev Tech) at 3.

Finally, the agency maintains that Dev Tech’s response in its FPR reflected its full understanding of the agency’s concerns; yet, Dev Tech failed to respond in a manner the agency found to be persuasive. 

Protests based on alleged procurement flaws other than solicitation improprieties must be filed not later than ten days after the basis of protest is known or should have been known (whichever is earlier).  4 C.F.R. 21.2(a)(2).  Further, competitive prejudice is an essential element of a viable protest and where a protester fails to demonstrate that, but for the agency’s action, it would have had a substantial chance of receiving the award, there is no basis for finding prejudice, even if deficiencies in the procurement are identified.  See, e.g., HP Enter. Servs., LLC, B-411205, B-411205.2, June 16, 2015, 2015 CPD ¶ 202 at 6. 

Here, to the extent Dev Tech’s protest is based on the assertion that the agency failed to comply with the procedural provisions of the solicitation, the protest is not timely filed.  As discussed above, there can be no doubt that Dev Tech was fully aware at the time it submitted its FPR on September 3, that the agency had not conducted the type of “interactive dialogue” that Dev Tech now asserts was required.  Nonetheless, Dev Tech opted not to raise this issue in any manner prior to October 5, waiting instead until after the source selection decision was announced.  On these facts, Dev Tech’s protest challenging the procedures the agency employed during oral presentations is not timely filed.

Next, to the extent Dev Tech’s protest reflects its assertion that the agency’s evaluation and/or source selection decision was substantively flawed because Dev Tech was not questioned regarding its labor mix during its oral presentation, we find no prejudice.  As noted above, Dev Tech complains that, if it had been advised during its oral presentation of the agency’s concern, Dev Tech “could have answered each and every concern with a detailed explanation of how the current staff were exceeding expectations and performing at the highest level.”  Dev Tech Comments/Supp. Protest, Nov. 15, 2021, at 16.  However, nothing in its protest meaningfully addresses how it was precluded from providing such a “detailed explanation” in its FPR.  Indeed, the record is clear that, following the agency’s identification of its concerns during discussions, Dev Tech was, in fact, afforded the opportunity to fully address those issues, but failed to do so in a manner that was persuasive to the agency.  Accordingly, on the record here, Dev Tech was not prejudiced by the agency’s failure to discuss its concerns during oral presentations, and its protest in that regard is denied.

Transition

Finally, Dev Tech asserts that the solicitation required “full performance” of the task order requirements, with “all staff in place,” on “day one” following task order issuance. Protest at 17-19; Dev Tech Comments/Supp. Protest, Nov. 15, 2021, at 17-26.  Dev Tech acknowledges that the solicitation expressly provided for a 3‑month transition period,[18] but nonetheless asserts that the solicitation provisions effectively precluded anything other than “full performance,” with “all staff in place,” on “day one.”  Id.  Accordingly, Dev Tech maintains that Harmonia’s proposal, which reflected a transition period prior to its assumption of full responsibility for performing all of the task order’s O&M requirements, “fail[ed] to meet a material requirement of the solicitation,” and “could not properly form the basis for an award.”[19]  Id.

The agency responds that Dev Tech’s interpretation of the solicitation requirements is fundamentally flawed.  More specifically, the agency notes that the solicitation clearly provided for a non-incumbent offeror to transition into full performance of the task order requirements during the first 3 months of the base performance period.  Among other things, the agency notes that the solicitation identified multiple transition activities that would occur during the transition period which are inconsistent with “full performance” of all O&M requirements on “day one” after award.  These activities include:  a “kick-off meeting” scheduled for “One (1) week after contract award”; submission of a transition‑in plan “Two (2) weeks after contract award”; “Favorable Entry of Duty (EOD) for all contractor staff from the ICE Personnel Security Unit” “within one (1) month after the kickoff meeting”; and “knowledge transfer sessions with the incumbent contractor” “within one (1) month after the kickoff meeting.”  See AR, Tab 2, PWS at 31-33.  The agency further notes that Dev Tech’s interpretation of the solicitation would exclude any offeror, other than the incumbent, from complying with the solicitation requirements.  AR, Tab 49, Supp. Contracting Officer’s Statement at 8.  Overall, the agency maintains that Dev Tech’s assertion that Harmonia was required to begin full performance of all O&M task order requirements on “day one” is contrary to any reasonable interpretation of the solicitation and would render meaningless the multiple solicitation provisions that contemplate a non-incumbent’s transition to full performance during the 3-month transition-in period.[20]

Where a protester and agency disagree over 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; to be valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner.  Crew Training Int’l, Inc., B-414126, Feb 7, 2017, 2017 CPD ¶ 53 at 4.

Here, reading the solicitation as a whole, we reject Dev Tech’s assertion that the solicitation required Harmonia to propose full task order performance prior to the end of the 3-month transition period.  As discussed above, Dev Tech’s interpretation of the solicitation would render meaningless the multiple solicitation provisions that clearly contemplate a non-incumbent’s ramping up to full contract performance during that period.  Accordingly, on the record here, we reject Dev Tech’s assertion that Harmonia’s proposal, which reflected a transition period prior to assuming responsibility for the task order requirements, “fail[ed] to meet a material requirement of the solicitation,” and “could not properly form the basis for an award.”[21]

The protest is denied.

Edda Emmanuelli Perez
General Counsel

 

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