Millennium Corporation
Highlights
Millennium Corporation, a small business of Arlington, Virginia, protests the issuance of a task order to QED Systems, LLC, a small business of Aberdeen Proving Ground, Maryland, under fair opportunity request for proposal (RFP) No. RS3-21-0031, which was issued by the Department of the Army, Army Contracting Command for systems engineering and technical assistance support services. The protester challenges the agency's evaluation of its proposal, tradeoff analysis, and conduct of discussions.
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This version has been approved for public release.
Decision
Matter of: Millennium Corporation
File: B-421551; B-421551.2
Date: June 26, 2023
Milton C. Johns, Esq., Executive Law Partners, PLLC, for the protester.
Matthew T. Schoonover, Esq., Matthew P. Moriarty, Esq., John M. Mattox II, Esq., Ian P. Patterson, Esq., and Timothy J. Laughlin, Esq., Schoonover & Moriarty LLC, for QED Systems, LLC, the intervenor.
Debra Talley, Esq., and David A. Machado, Esq., Department of the Army, for the agency.
Nathaniel S. Canfield, Esq., and Evan D. Wesser, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that the agency failed to meaningfully consider cost/price before excluding the protester’s proposal from the competition is denied where any error was not prejudicial.
DECISION
Millennium Corporation, a small business of Arlington, Virginia, protests the issuance of a task order to QED Systems, LLC, a small business of Aberdeen Proving Ground, Maryland, under fair opportunity request for proposal (RFP) No. RS3-21-0031, which was issued by the Department of the Army, Army Contracting Command for systems engineering and technical assistance support services. The protester challenges the agency’s evaluation of its proposal, tradeoff analysis, and conduct of discussions.
We deny the protest.
BACKGROUND
The agency issued the RFP on December 17, 2021, pursuant to the procedures in Federal Acquisition Regulation (FAR) subpart 16.5, to small businesses holding Responsive Strategic Sourcing for Services multiple‑award indefinite‑delivery, indefinite‑quantity (IDIQ) contracts issued by the Department of the Army. Contracting Officer’s Statement and Memorandum of Law (COS/MOL) at 1‑2; Agency Report (AR), Tab 6, RFP at 1.[1] The RFP sought proposals for the provision of systems engineering and technical assistance support services to the project manager, terrestrial sensors, primarily at Fort Belvoir, Virginia, with additional performance at various other locations. COS/MOL at 1‑2; RFP at 2‑3; AR, Tab 6, attach. 1, Performance Work Statement (PWS) at 4; AR, Tab 10, Combined Task Order Decision Document (TODD) at 2. As stated in the RFP, this office’s “portfolio of state‑of‑the‑art sensors and networks gather, integrate, and disseminate full‑motion video, acoustic, seismic, laser, radar, and target data, ultimately acting as the ever‑present ‘eyes of the battlefield.’” PWS at 4.
The RFP contemplated the issuance of a single task order including cost‑plus‑fixed‑fee and cost no-fee contract line items, a 12‑month period of performance, and four 12‑month option periods. RFP at 1‑2. Award was to be made using a best‑value tradeoff methodology considering two non‑cost/price factors--technical and past performance--and cost/price. Id. at 24. The technical factor was significantly more important than past performance and cost/price, both individually and when combined. Id. The RFP further advised that the past performance factor was slightly more important than cost/price. Id.
As to the technical factor, the RFP provided that proposals would be assigned adjectival ratings of high, some, or low confidence, corresponding to the level of confidence the agency had that the offeror understood the requirement, proposed a sound approach, and would be successful in performing without government intervention. Id. at 26‑27. Under the past performance factor, the agency would assign adjectival ratings of substantial, satisfactory, neutral, limited, or no confidence, corresponding to the agency’s expectation of successful performance based on the offeror’s performance record on recent and relevant contracts. Id. at 29.
Relevant here, the RFP advised offerors that the agency was competing the requirement pursuant to the fair opportunity ordering requirements of FAR subpart 16.5, and further that “the competition requirements of FAR Part 6 and the policies and procedures of FAR Subpart 15.3” did not apply. Id. at 1. The RFP further stated that, while the agency intended to make award based on initial proposals, the agency reserved the ability to conduct “interchanges” with “some or all [o]fferors[,]” and that the agency would request proposal revisions in the conduct of those interchanges. Id. at 32‑33.
The agency received six proposals in response to the RFP, including from the protester. COS/MOL at 3; AR, Tab 10, TODD at 3. After evaluating initial proposals, the agency assigned the following ratings:
|
Technical |
Past Performance |
Cost/Price |
|
|---|---|---|---|
|
Offeror A |
High Confidence |
Neutral Confidence |
$43,674,177 |
|
Offeror B |
Low Confidence |
Satisfactory Confidence |
Not evaluated |
|
Millennium |
Some Confidence |
Substantial Confidence |
$48,580,175 |
|
Offeror D |
Low Confidence |
Substantial Confidence |
Not evaluated |
|
QED Systems |
High Confidence |
Substantial Confidence |
$46,981,075 |
|
Offeror F |
Some Confidence |
Substantial Confidence |
$47,581,609 |
AR, Tab 10, TODD at 83.
Based on the evaluation of initial proposals, the contracting officer determined that only the proposals submitted by Offeror A and QED Systems would be considered for award, as those were the only two proposals that were competitive in light of the weighting assigned to the evaluation factors by the RFP. Id. at 8, 83‑84. The agency issued evaluation notices to those two offerors and obtained revised proposals from them, resulting in the following final ratings and evaluated cost/price for those two proposals:
|
Technical |
Past Performance |
Cost/Price |
|
|---|---|---|---|
|
Offeror A |
High Confidence |
Neutral Confidence |
$44,225,609 |
|
QED Systems |
High Confidence |
Substantial Confidence |
$51,757,310 |
Id. at 84.
The contracting officer then determined that the proposal submitted by QED Systems represented the best value to the agency, with the advantages of its proposal warranting the associated cost/price premium as compared to Offeror A’s proposal. Id. at 86‑87. On March 3, 2023, the agency notified the protester that it had selected QED Systems’ proposal for award. See Protest, attach. 2, Notice of Award. Following a debriefing, the protester submitted this protest to our Office on March 20.[2]
DISCUSSION
Millennium principally challenges the reasonableness of the agency’s determination not to consider the protester’s proposal for award, contending that the agency’s determination departed from the RFP’s evaluation methodology by failing to consider cost/price when comparing proposals against each other.[3] See Protest at 19‑20; Comments & Supp. Protest at 4‑7. The agency responds that it reasonably considered offerors’ proposals consistent with the RFP’s relevant evaluation criteria weightings, and reasonably found that only the offerors that received the highest rating under the most significantly weighted technical evaluation factor were the most highly rated proposals. COS/MOL at 27‑29; Supp. COS/MOL at 6‑8. For the reasons that follow, we find that, to whatever extent the agency erred by not considering cost/price, the protester cannot reasonably establish that it was competitively prejudiced by any such error.
As discussed above, the RFP advised that the agency reserved the ability to conduct “interchanges” with “some or all [o]fferors[,]” and that the agency would request proposal revisions in the conduct of those interchanges. RFP at 32‑33. Consistent with that statement, the record reflects that the contracting officer determined that only the initial proposals submitted by Offeror A and QED Systems were competitive in light of the RFP’s weighting of the evaluation factors, and that the agency would request revised proposals from those two offerors. See AR, Tab 10, TODD at 8, 83‑84. At the time the contracting officer made that determination, the relevant ratings and evaluated cost/price stood as follows:
|
Technical |
Past Performance |
Cost/Price |
|
|---|---|---|---|
|
Offeror A |
High Confidence |
Neutral Confidence |
$43,674,177 |
|
Millennium |
Some Confidence |
Substantial Confidence |
$48,580,175 |
|
QED Systems |
High Confidence |
Substantial Confidence |
$46,981,075 |
AR, Tab 10, TODD at 83.
Thus, at the time the agency determined that only the proposals of Offeror A and QED Systems were competitive, those two proposals had the highest ratings under the technical factor, which was significantly more important than past performance and cost/price, both individually and combined. Furthermore, those technical ratings were higher than the rating of some confidence assigned to Millennium’s proposal. Millennium’s proposal had an advantage over Offeror A’s proposal under the past performance factor, but QED Systems also received the highest possible rating under that factor. Lastly, both Offeror A and QED Systems had a lower total evaluated cost/price than Millennium. It was only after those offerors submitted revised proposals that QED Systems’ total evaluated cost/price ($51,757,310)--but not Offeror A’s ($44,225,609)--rose above Millennium’s initial evaluated cost/price ($48,580,175).
Accordingly, even accepting the protester’s contention that the contemporaneous record fails to adequately describe the role of cost/price in the agency’s consideration of proposals,[4] we can discern no reasonable possibility that Millennium was competitively prejudiced. Competitive prejudice is an essential element of any viable protest; where the protester fails to demonstrate that, but for the agency’s actions, it would have had a substantial chance of receiving the award, there is no basis for finding competitive prejudice, and our Office will not sustain a protest, even if deficiencies in the procurement are found. Equinoxys, Inc., B‑419237, B‑419237.2, Jan. 6, 2021, 2021 CPD ¶ 16 at 6.
The record reflects that both Offeror A and QED Systems had lower total evaluated cost/prices than Millennium at the time the agency determined that only their proposals were competitive, thereby eliminating Millennium’s proposal from the competition. Thus, even if the agency erred in failing to adequately document its consideration of cost/price, the consideration of cost/price only would have bolstered the agency’s decision to exclude Millennium’s proposal from the competition. See, e.g., RTF/TCI/EAI Joint Venture, B‑280422.3, Dec. 29, 1998, 98‑2 CPD ¶ 162 at 11 (concluding that award decision would have been unchanged despite agency error in failing to consider price where awardee’s proposal was technically superior to and lower priced than protester’s proposal).[5] The protester therefore fails to provide a basis for finding competitive prejudice with respect to the agency’s consideration of cost/price.
The protest is denied.
Edda Emmanuelli Perez
General Counsel
[1] The agency amended the RFP four times. Citations to the RFP are to the amended, conformed version issued by the agency with the fourth amendment to the RFP, found at Tab 6 of the agency report.
[2] Because the estimated value of the issued task order is over $25 million, this procurement is within our jurisdiction to hear protests related to the issuance of orders under multiple‑award IDIQ contracts awarded under the authority granted in title 10 of the United States Code. 10 U.S.C. § 3406(f).
[3] The protester raises a number of additional and collateral arguments. Although our decision does not address every argument, we have considered them all and find that none provides a basis on which to sustain the protest. For example, the protester initially argued that the agency unreasonably made multiple negative findings in its evaluation of Millennium’s proposal, resulting in an unreasonable “some confidence” rating under the technical factor. See Protest at 6‑19. The agency responded fulsomely to each of the protester’s specific arguments. See COS/MOL at 9‑27. In its comments, the protester did not substantively respond to the agency’s rebuttal, but stated only that it “re‑alleges its extensive rebuttal to the technical evaluation presented in its [p]rotest,” and that its initial protest “explicitly describes all the areas in its [p]roposal that it indeed ‘answered the mail’ in response to the solicitation.” Comments & Supp. Protest at 2‑3. This incorporation of previous assertions, without substantively responding to the agency’s specific arguments, is insufficient.
In responding to an agency report, protesters are required to provide a substantive response to the arguments advanced by the agency. enrGies, Inc., B‑408609.9, May 21, 2014, 2014 CPD ¶ 158 at 4. Where a protester merely references earlier arguments advanced in an initial protest without providing a substantive response to the agency’s position, our Office will dismiss the referenced allegations as abandoned. Id.; see also Citrus College; KEI Pearson, Inc., B‑293543 et al., Apr. 9, 2004, 2004 CPD ¶ 104 at 8 n.4 (dismissing arguments as abandoned where the protester’s comments alleged, without more, that the original arguments “[we]re maintained”). Therefore, the protester abandoned its challenges to the agency’s evaluation of its proposal.
[4] The record in this regard is not a model of clarity. In determining that only the proposals submitted by Offeror A and QED Systems were competitive, the contracting officer expressly cited the ratings assigned to those proposals under the technical factor, and further noted that factor’s substantially heavier weighting as compared to past performance and cost/price. See AR, Tab 10, TODD at 83‑84. Immediately preceding the contracting officer’s determination is a summary table reflecting the ratings of all proposals under all factors, as well as their total evaluated cost/price. See id. at 83. We need not reach the question whether the record demonstrates that the agency considered cost/price, however, as we conclude that the protester cannot demonstrate prejudice by any failure to consider cost/price.
[5] Millennium also argues that it was improper for the agency to conduct interchanges only with Offeror A and QED Systems. We disagree. Because we discern no prejudicial error in the agency’s determination that Millennium did not submit one of the most highly rated proposals and consequent exclusion of Millennium’s proposal from the competition, the agency was not required to conduct exchanges with Millennium. Sigmatech, Inc., B‑419565 et al., May 7, 2021, 2021 CPD ¶ 241 at 30; Tetra Tech, Inc., B‑416861.2, B‑416861.3, May 22, 2019, 2019 CPD ¶ 196 at 9; NTT DATA Servs. Fed. Gov’t, Inc., B‑416123 et al., June 20, 2018, 2018 CPD ¶ 215 at 6.