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Booz Allen Hamilton, Inc.

B-422118.2,B-422118.3 Jul 30, 2024
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Booz Allen Hamilton (BAH), Inc., of McLean, Virginia, protests the establishment of a blanket-purchase agreement (BPA) with and the issuance of a call order to Guidehouse, Inc., of Chicago, Illinois, under request for quotations (RFQ) 36C10F23Q0008 issued to all holders of the General Services Administration multiple-award federal supply schedule 541611, management and financial consulting, by the Department of Veterans Affairs (VA) for market area assessments of VA's healthcare networks. The protester primarily challenges the adequacy and reasonableness of the agency's best-value tradeoff and, alleges that the awardee should have been found technically unacceptable because one of its proposed key personnel became unavailable prior to award.

We deny the protest in part and dismiss it in part.
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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: Booz Allen Hamilton, Inc.

File: B-422118.2; B-422118.3

Date: July 30, 2024

Kristen E. Ittig, Esq., Amanda J. Sherwood, Esq., Roee Talmor, Esq., and Nicole Williamson, Esq., Arnold & Porter LLP, for the protester.
Brian G. Walsh, Esq., Tracye Winfrey Howard, Esq., Cara L. Sizemore, Esq., Sarah B. Hansen, Esq., and Morgan W. Huston, Esq., Wiley Rein LLP, for Guidehouse, Inc., the intervenor.
Danica Hong, Esq., and Catherine Gilabert, Esq., Department of Veterans Affairs, for the agency.
Michael Willems, Esq., and Evan D. Wesser, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protest brought for the first time following corrective action is untimely when it challenges evaluation findings from an earlier award decision of which the protester was previously advised, and which did not change during the reevaluation.

2. Protest of agency's evaluation and best-value tradeoff decision is denied where the evaluation and award decision were adequately documented, reasonable, and consistent with the solicitation.

3. Protest that the awardee is ineligible for award because it did not notify the agency that a key person became unavailable to perform after quotation submission but before award is denied, where the protester did not demonstrate that the key person was actually unavailable.

DECISION

Booz Allen Hamilton (BAH), Inc., of McLean, Virginia, protests the establishment of a blanket-purchase agreement (BPA) with and the issuance of a call order to Guidehouse, Inc., of Chicago, Illinois, under request for quotations (RFQ) 36C10F23Q0008 issued to all holders of the General Services Administration multiple-award federal supply schedule 541611, management and financial consulting, by the Department of Veterans Affairs (VA) for market area assessments of VA's healthcare networks. The protester primarily challenges the adequacy and reasonableness of the agency's best-value tradeoff and, alleges that the awardee should have been found technically unacceptable because one of its proposed key personnel became unavailable prior to award.

We deny the protest in part and dismiss it in part.

BACKGROUND

On February 13, 2023, the agency issued the RFQ seeking to establish a single BPA with a fixed-price first call order for healthcare market assessments. Agency Report (AR), Tab B, Contracting Officer's Statement (COS) at 3. The solicitation provided that award would be made on the basis of a best-value tradeoff between four factors, which are listed in descending order of importance: (1) technical approach; (2) past performance; (3) socioeconomic considerations; and (4) price. AR, Tab A1, RFQ at 78. The technical approach factor was divided into three equally weighted subfactors: (1) feasibility of approach; (2) first call order staffing and management plan; and (3) key personnel. Id. The solicitation also provided that the non-price factors, when combined, were significantly more important than price. Id. at 77.

Relevant to this protest, the solicitation explained that key personnel would be evaluated to determine whether the proposed key personnel have the minimum required knowledge, skills, and experience to perform the necessary tasks. Id. at 78. The solicitation also explained that key personnel exceeding the minimum established requirements, to the government's benefit, may be rated more favorably. Id.

The agency received four quotations in response to the RFQ, including quotations from BAH, Guidehouse, and Deloitte Consulting, LLP. Memorandum of Law (MOL) at 3. On September 29, 2023, the agency issued the BPA and first call order to Guidehouse. Id. The agency also sent notices to the unsuccessful vendors providing a high-level discussion of their respective evaluations. Id. For example, BAH received a letter with a description of the specific strengths and weaknesses assigned to its technical quotation. Id. Additionally, following the award, Guidehouse's quoted price became public in the System for Award Management. See AR, Tab G, Agency Request for Dismissal at 3.

On October 10, Deloitte filed a protest with our Office; BAH did not file a protest at that time. On November 3 the agency indicated that it would take corrective action by reevaluating all quotations and making a new award decision, and we dismissed the protest as academic on November 8. Deloitte Consulting, LLP, B422118, Nov. 8, 2023 (unpublished decision).

The agency conducted a reevaluation and, on April 18, 2024, again made award to Guidehouse. MOL at 3. Relevant to this protest, the agency concluded that BAH and Guidehouse were evaluated as substantively equal for past performance and socio-economic considerations, but Guidehouse's technical quotation received a significantly better rating. AR, Tab D, Source Selection Decision at 95-96. The agency concluded that while BAH's price of $10,952,798 was lower than Guidehouse's price of $11,993,131, Guidehouse's technical advantages merited paying the price premium. Id.

The agency sent letters to the unsuccessful vendors that were similar to the letters the agency previously sent in September of 2023. Id. For example, while BAH received four additional strengths in the reevaluation, BAH's other strengths and weaknesses remained unchanged and were described in substantively identical terms in both the September and April letters. AR, Tab G, Agency Request for Dismissal at 3. This protest followed.

DISCUSSION

BAH raises numerous challenges to the agency's award. Specifically, BAH challenges the weaknesses assigned to its own technical quotation and argues that it should have received additional strengths. Protest at 15-38. The protester also alleges that the agency's evaluation was unreasonable and applied unstated evaluation criteria in assigning strengths to Guidehouse's quotation and challenges the agency's best-value tradeoff in numerous respects. Protester's Comments and Supp. Protest at 33-44. Additionally, the protester alleges that one of Guidehouse's key personnel will not be available to perform, and that Guidehouse failed to notify the agency of this fact and therefore should be found ineligible for award. Id. at 3-6. Finally, the protester challenges the agency's best-value tradeoff decision in numerous respects.[1]

Untimely Arguments

The agency requests that we dismiss the entirety of the original protest allegations challenging the agency's evaluation of BAH's quotation as untimely. See AR, Tab G, Agency Request for Dismissal generally. In this regard, following the first award in this procurement, in September of 2023, the protester received a letter outlining the weaknesses and strengths assigned to its quotation. Id. Following the agency's corrective action and re-award, in April of 2024, the protester received a second similar letter. See AR, Tab E2, April Notice. Relevant here, while the agency assigned some additional strengths to the protester's quotation in the reevaluation, the agency's initial and post-corrective action evaluations of both the protester's technical weaknesses and the areas of its quotation in which the protester now alleges it deserved additional strengths were substantially identical. Likewise, several of the protester's disparate or unequal treatment arguments are founded on facts and evaluation conclusions that are unchanged since the initial evaluation.

Our bid protest regulations require that vendors must generally bring post award protests within 10 days of when they knew or should have known their basis of protest. 4 C.F.R. § 21.2(a)(2). In this regard, we have specifically explained that a protest of an agency's corrective action award will not be found timely where the protester failed to timely challenge similar evaluation findings following the original award. The fact that an agency makes a new source selection decision or reevaluates proposals or quotations does not provide a basis for reviving otherwise untimely protest allegations where, as here, the basis of the otherwise untimely protest allegations concern aspects of the agency's evaluation that were not subsequently affected by the agency's corrective action. Red River Comput. Co., Inc.; MIS Sciences Corp., B-414183.8 et al., Dec. 22, 2017, 2018 CPD ¶ 7at 6-7 n.10; Synergy Solutions, Inc., B-413974.3, June 15, 2017, 2017 CPD ¶ 332 at 7; Savvee Consulting, Inc., B-408416.3, Mar. 5, 2014, 2014 CPD ¶ 92 at 6.

While the protester argues that those cases are distinguishable from this case, we do not agree. For example, in Red River Computer Company we dismissed protest allegations when a protester was advised of an agency's evaluation findings following an initial award, did not file a protest at that time, but later protested substantially identical evaluation findings following a corrective action reevaluation and award. Red River Comput. Co., Inc.; MIS Sciences Corp, supra. These are almost precisely the facts of this case. Contrary to the protester's suggestion that this case is different because it involved a reevaluation of technical quotations, the agency in Red River reevaluated both technical and price quotations and made a new award decision during its corrective action reaching the same conclusions concerning relevant elements of the technical evaluation. Id. In Red River, we dismissed arguments challenging the unchanged and previously unchallenged elements. Id.

For these reasons, we conclude that the protest grounds concerning BAH's technical weaknesses, the protest grounds alleging that BAH should have received additional strengths, and BAH's disparate treatment arguments advanced in its initial protest are untimely and are dismissed.[2]

Unreasonable Evaluation and Unstated Evaluation Criteria

Next, the protester argues that the agency's evaluation was unreasonable and relied on unstated evaluation criteria. Protester's Comments and Supp. Protest at 33-44. In this regard, the protester argues, in different ways, that the strengths assigned to Guidehouse's quotation reflect an irrational preference for Guidehouse's status as incumbent, which was not an evaluation factor contemplated by the solicitation. Id. For example, the protester argues that assigning Guidehouse a strength for retaining all incumbent personnel reflects an impermissible preference for incumbency, and the solicitation did not provide for any preference for incumbent personnel. Id.

Similarly, the protester argues that the strength assigned because Guidehouse demonstrated an understanding that closely describes the current state of agency facilities and infrastructure likewise reflects the agency's preference for incumbency, as only the incumbent could demonstrate such knowledge. Id. Moreover, the protester argues that knowledge of the agency's current facilities and infrastructure is unrelated to any evaluation criterion. Id.

As a general matter, incumbents may possess an advantage stemming from their familiarity with the agency's requirements. Our decisions have consistently concluded that the existence of such an incumbent advantage, in and of itself, does not constitute preferential treatment by the agency, nor is such a normally occurring advantage necessarily unfair. See ASRC Communications, Ltd., B-414319.2, et al., May 9, 2017, 2017 CPD ¶ 167 at 9. Moreover, where a protester challenges an evaluation as unfairly utilizing unstated evaluation criteria, our Office will assess whether the solicitation reasonably informs vendors of the basis for the evaluation. Raytheon Co., B-403110.3, Apr. 26, 2011, 2011 CPD ¶ 96 at 5. In that regard, procuring agencies are not required to identify every area that may be taken into account; rather, it is sufficient that the areas considered in the evaluation be reasonably related to or encompassed by the stated criteria. Id.

In this case, the fact that the awardee retained all 13 key personnel from the incumbent effort and that the agency found this advantageous is neither inappropriate nor unfair. Indeed, the solicitation explained that the agency would assess key personnel to determine whether they exceeded the solicitation's requirements, and also provided that vendors' management plans would be assessed for, among other things, an approach to recruitment and retention. RFQ at 78. The agency found that Guidehouse's key personnel generally significantly exceeded the minimum requirements such that the agency awarded Guidehouse strengths for 12 of its 13 proposed key personnel. AR, Tab D, Source Selection Decision at 94. That is, the agency felt the incumbent key personnel were, collectively, significantly advantageous to the government not simply because they were incumbents, but because they significantly exceeded the government's requirements. Likewise, it is not irrational to conclude, as the source selection authority did here, that a vendor's ability to retain all 13 key personnel from the prior effort and to propose them on the current effort is reasonably related to that vendor's approach to recruitment and retention. See Id. at 93. In short, on these facts, this strength is logically encompassed in the agency's proposed assessment of key personnel and of each vendors' approach to recruitment and retention.

Similarly, we do not agree that the strength assigned for demonstrating knowledge of the agency's facilities and infrastructure represents an inappropriate preference or unstated evaluation criterion. Preliminarily, we note that the strength was not solely assigned for Guidehouse's knowledge of the state of the agency's current facilities and infrastructure, but also for Guidehouse's proposed approach to strategic prioritization regarding those resources. See Id. The source selection decision goes on to explain that the “strength represents a high level of understanding of not only current but future needs and adds value” to the agency over the life of the BPA. Id. That is, the strength was not simply a recognition of the awardee's knowledge of the current state of affairs, but rather referred to how the awardee planned to strategically prioritize agency needs going forward.

Significantly, the solicitation specifically contemplated an evaluation of each vendors' approach to strategic prioritization. See RFQ at 37, 77 (explaining that quotations will be evaluated based on approaches to specific task areas, one of which was strategic prioritization); see also AR, Tab D, Source Selection Decision at 8. Accordingly, this strength clearly relates to an identified evaluation factor. Moreover, the fact that Guidehouse was able to demonstrate a superior approach to strategic prioritization due to its knowledge of the agency's current facilities and infrastructure is reasonable and does not suggest unfair or preferential treatment. That is, it reflects, at best, a normally occurring incumbent advantage.

Availability of Key Personnel

Next, the protester challenges the availability of one of the awardee's proposed key personnel. Protester's Comments and Supp. Protest at 3-6. The protester notes that, according to a social media post, an individual that we will identify as Ms. X retired from her position with a subcontractor of Guidehouse, eight months ago. Id. The protester contends that this establishes that Ms. X is unavailable and that Guidehouse did not notify the agency of her unavailability. Id. BAH maintains that Guidehouse should therefore be excluded from the competition. Id. In the alternative, the protester argues that, because key personnel are material solicitation requirements, Guidehouse's quotation was, at minimum, ineligible for award. Id. Additionally, the protester notes that the agency assigned Guidehouse's quotation a strength specifically for Ms. X, and viewed that strength, among others, as a distinguisher between the two quotations. Id.

In response, the agency notes that our decisions only require that vendors notify the agency of personnel unavailability of which they have actual knowledge. Supp. MOL at 3-5 (citing ASRC Fed. Data Network Techs., LLC, B-419519.4, Sept. 19, 2022, 2022 CPD ¶ 241). According to the agency, our decisions have not established for awardees “an ongoing obligation to be in constant contact with their respective proposed key personnel to ensure that they were at all times available during the [extended procurement].” Supp. MOL at 3 (quoting DZSP 21, LLC, B-410486.10, Jan. 10, 2018, 2018 CPD ¶ 155 at 10). More significantly, the agency argues that our decisions have consistently concluded that simply because a person is no longer employed by a firm, that fact alone does not establish that they are unavailable to perform, absent other evidence. Supp. MOL at 35.

Moreover, the intervenor contests that Ms. X is unavailable. Specifically, the intervenor explains that Ms. X signed a letter of commitment to perform, and that the letter of commitment has not been rescinded and contained no expiration date. Intervenor's Supp. Comments at 2-5. Further, around the time that Ms. X announced her retirement, Guidehouse contacted its subcontractor that employed Ms. X. Id. During this conversation, a representative for the subcontractor confirmed that Ms. X remained available to perform under the resulting BPA and order. Id. The intervenor also represents that Guidehouse has received no further information concerning Ms. X that would make it question her availability. Id.

Our Office has explained that vendors are obligated to advise agencies of material changes in proposed staffing, even after submission of proposals or quotations. MindPoint Grp., LLC, B-418875.2, B-418875.4, Oct. 8, 2020, 2020 CPD ¶ 309 at 6. An offeror or vendor generally is required to advise an agency when it knows that one or more key employees have become unavailable after the submission of its quotation but before award. M.C. Dean, Inc., B-418553, B418553.2, June 15, 2020, 2020 CPD ¶ 206 at 4. The duty to notify does not arise, however, if an offeror or vendor does not have actual knowledge of the employee's unavailability. DZSP 21, LLC, supra at 10 (denying protest where protester represented a credible understanding that, notwithstanding resignation and retirement of several key personnel, the key personnel remained available).

Here, we cannot conclude that Guidehouse had actual knowledge that Ms. X was unavailable. Ms. X did not rescind her letter of commitment or otherwise specifically indicate that she would be unavailable to perform. Moreover, at the time of her retirement, Guidehouse sought and received confirmation of her continued availability from her erstwhile employer. The intervenor's program manager credibly explained that he did not find this representation surprising or implausible as in his experience “people often return to work after they retire.” Intervenor's Supp. Comments, Exh. 1 at 19. In short, on this record, we have no reason to conclude that Guidehouse had actual knowledge that Ms. X would be unavailable--or, for that matter, that Ms. X actually is unavailable to perform.

Best-Value Tradeoff Challenges

Finally, the protester challenges the agency's best-value tradeoff in several respects. Protest at 34-36; Protester's Comments and Supp. Protest at 6-23. First, the protester contends that the agency failed to reasonably consider or adequately document its consideration of the protester's price advantage. Id. Second, the protester alleges that the agency overemphasized the assessed strengths associated with the awardee's proposed key personnel. Id. Third, the protester argues that the agency engaged in a mechanical counting of strengths. Id. We address these arguments in turn and find that none provides a basis on which to sustain the protest.

Source selection officials have broad discretion in determining the manner and extent to which they will make use of the technical and cost evaluation results; cost and technical tradeoffs may be made, and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the solicitation's evaluation criteria. Booz Allen Hamilton Inc., B-414283, B-414283.2, Apr. 27, 2017, 2017 CPD ¶ 159 at 13-14. In reviewing protests of an agency's source selection decision, we do not reevaluate quotations but examine the record to determine whether the evaluation and source selection decision were reasonable and consistent with the solicitation's evaluation criteria and applicable procurement laws and regulations. Intelligent Waves LLC, B-416169, B-416169.2, June 12, 2018, 2018 CPD ¶ 211 at 12. Further, a tradeoff analysis must be properly documented, and an award on the basis of a higher-priced quotation that is not supported by valid justification fails to comply with this requirement. See Blue Rock Structures, Inc., B-293134, Feb. 6, 2004, 2004 CPD ¶ 63 at 5; Universal Building Maintenance, Inc., B-282456, July 15, 1999, 99-2 CPD ¶ 32 at 4-5.

First, the protester argues that the agency failed to adequately consider the protester's price advantage and makes two principal arguments. Protest at 34-35; Protester's Comments and Supp. Protest at 8-12. The protester first argues that the agency failed to adequately document its consideration of BAH's price advantage. Id. Additionally, the protester argues that the agency improperly credited Guidehouse with an advantage for providing more labor hours per dollar. Id. In this regard, the source selection decision noted that Guidehouse proposed significantly more labor hours at a significantly lower average price per hour than BAH. Id. The protester contends that considering the average cost per labor hour deviated from the solicitation's price evaluation scheme, is unreasonable because it did not rely on a weighted average, and improperly penalized BAH for proposing an efficient approach that permitted it to propose both fewer labor hours and a lower price. Id. (citing Health Servs. Int'l, Inc., Apex Envtl., Inc., B247433, B-247433.2, June 5, 1992, 92-1 CPD ¶ 493 and Veterans Evaluation Servs., Inc. et al., B-412940 et al., July 13, 2016, 2016 CPD ¶ 185 for the proposition that the use of unweighted averages in price evaluations is unreasonable).

In response, the agency argues that its consideration of the differences between Guidehouse's and BAH's quotations was reasonable and thoroughly documented. Supp. MOL at 6-8. First, the agency notes that the source selection decision contains significant discussion explaining why the technical advantages of Guidehouse's quotation are worth paying a price premium over BAH's quotation. AR, Tab D, Source Selection Decision at 95-96. Second, the agency notes that it did not rely on the average price per hour as part of its price evaluation, and that the source selection decision explicitly acknowledged that BAH had a lower price. AR, Tab D, Source Selection Decision at 96. Moreover, the agency argues that the decisions relied on by the protester involve an agency using unweighted averages as part of a price evaluation or to compute a vendor's total price for evaluation, which was not the case here. Supp. MOL at 6-8.

Here, we see no basis to conclude that the agency's tradeoff was unreasonable or inconsistent with the terms of the solicitation. First, the source selection decision contains significant and meaningful discussion of the technical distinctions between the two quotations, and more than adequately documents the agency's rationale for finding that Guidehouse's quotation represented a better value. See AR, Tab D, Source Selection Decision at 95-96.

Further, it is equally clear that the agency did not rely on average prices in its price evaluation or in computing the evaluated prices of the vendors, so the decisions on which the protester relies are inapposite. Compare AR, Tab D, Source Selection Decision at 84-86 with 95-96. Rather, the source selection decision explained that Guidehouse proposed a [DELETED] percent higher level of effort for an approximately 10 percent higher price, and that the agency found this increased level of effort to be a beneficial distinction between the quotations that justified paying the higher price for Guidehouse's quotation. Id. at 96. While the decision describes Guidehouse's quotation as more “cost-effective” we understand that statement, and the dollar averages, as referring to that increased level of effort per dollar. Id.

Put another way, the narrative in the source selection decision is not an impermissible price evaluation based on average labor hours, but rather an explanation of a technical benefit (higher level of effort) that the agency expects to receive from paying a premium for Guidehouse's quotation. While the protester argues that it is unfair for the agency to prefer a solution that is effectively less efficient involving a higher quantity of labor at a higher price, this amounts to nothing more than disagreement with the agency's technical judgment that a higher level of effort would be beneficial. See DynCorp International, LLC, B-412451, B-412451.2, Feb. 16, 2016, 2016 CPD ¶ 75 at 7-8; Jacobs Tech., Inc., B-411784, B411784.2, Oct. 21, 2015, 2015 CPD ¶ 342 at 10-11. Given the deference owed to agencies when making their selection decisions, on these facts, we see no basis to sustain the protest.

Next, the protester argues that the agency impermissibly overweighted the key personnel evaluation sub-factor. Protester's Comments and Supp. Protest at 12-17. In this regard, the protester notes that, while the technical factor as a whole was the most important evaluation factor, key personnel only represented one of three equally weighted evaluation sub-factors within the technical factor. Id. However, the agency assigned 12 distinct strengths for Guidehouse's key personnel, which distorted the agency's tradeoff analysis. Id. For example, while the tradeoff narrative identifies ten strengths assessed to Guidehouse's quotation that distinguish it from BAH's quotation, seven of those strengths relate to Guidehouse's key personnel. Id. The protester argues that this effectively exaggerated the significance of the key personnel sub-factor beyond what the solicitation permits. Id.

We do not agree. Preliminarily, we note that the protester's argument, at its core, implies that assigning a larger number of strengths to one of several equally weighted subfactors is necessarily evidence of overweighting. However, this elevates form over substance. It is irrelevant whether the agency assigned numerous separate strengths or assigned one larger strength that encompasses the substantive features of the separate strengths. In either case, it is the substance of the evaluation that is significant, not the organization of the agency's evaluation narrative.

Furthermore, the record suggests that the source selection authority substantively compared BAH's and Guidehouse's quotations assessing and comparing the strengths that each had received under the technical sub-factors. See AR, Tab D, Source Selection Decision at 92-94. In this regard, while both vendors had similar numbers of strengths under the first and second technical sub-factors, Guidehouse had significantly more strengths under the key personnel sub-factor. Id. The fact that seven of the ten strengths that distinguished Guidehouse's quotation related to the key personnel sub-factor does not establish an impermissible over-weighting by the source selection authority, but rather reflects the substantive differences between the quotations. Put another way, the key personnel sub-factor represented one of the primary technical distinctions between the two quotations, so it was entirely reasonable for the agency to focus on that area in conducting the best-value tradeoff. Cf. New Directions Techs., Inc., B-412703.2, B412703.3, Aug. 18, 2016, 2016 CPD ¶ 241 at 9 (“An agency, in making its tradeoff analysis, ultimately may focus on a particular discriminator between proposals, even if it is not related to one of the most-heavily weighted evaluation factors, where it has a reasonable basis to do so.”).

We additionally note that the source selection decision also discussed several other technical aspects that the agency viewed as distinguishing the quotations other than the awardee's key personnel. See AR, Tab D, Source Selection Decision at 96 (discussing Guidehouse's higher proposed level of effort, management and retention plans, and its deep understanding of both current and future needs). In short, we see no basis to conclude that the agency's consideration of the key personnel sub-factor in the tradeoff decision was unreasonable.

Finally, turning to the protester's argument that the agency engaged in a mechanical counting of strengths, we do not agree. Our Office has explained that point scores and adjectival ratings are only guides to assist source selection officials in evaluating quotations; they do not mandate automatic selection of a particular quotation. Harmonia Holdings Grp., LLC, B-417475.3, B-417475.4, Sept. 23, 2019, 2019 CPD ¶ 333 at 24; KPMG Consulting LLP, B-290716, B-290716.2, Sept. 23, 2002, 2002 CPD ¶ 196 at 13. Additionally, comparisons of the relative merit of offerors' proposals or quotations should not be based on a mechanical count of the number of strengths and weaknesses. PricewaterhouseCoopers Pub. Sector, LLP, B-415504, B415504.2, Jan. 18, 2018, 2018 CPD ¶ 35 at 7.

While the protester is correct that the source selection decision counts the awardee's technical strengths that it viewed as exceeding the protester's strengths, the decision does not simply conclude that the awardee is superior based on a mechanical counting of those strengths. For example, under the first technical sub-factor, the source selection decision identifies two of Guidehouse's technical strengths as being similar to and of equal value to four of BAH's technical strengths based on a substantive discussion of each vendor's quotation, and then notes that Guidehouse had two additional strengths that distinguished it from BAH's approach. AR, Tab D, Source Selection Decision at 92. That is, while the protester is correct that the final tradeoff counts the number of the awardee's additional strengths, that count is based on a substantive underlying comparison of the two quotations.

Moreover, the tradeoff decision describes the substance of each additional strength and goes on to identify the specific strengths that the agency found to be discriminators between Guidehouse and BAH, such as Guidehouse's robust management and retention plan. Id. at 96. The source selection decision concludes by explaining that the agency collectively found these additional strengths worth the price premium for Guidehouse's quotation. Id. In short, the record establishes that the selection official was aware of and considered the relative merits and costs of the competing quotations, and we see no basis to sustain the protest on this ground. See General Dynamics Information Tech., Inc., B-415568, B-415568.2, Jan. 25, 2018, 2018 CPD ¶ 63 at 12; Wyle Labs., Inc., B407784, Feb. 19, 2013, 2013 CPD ¶ 63 at 11.

The protest is denied in part and dismissed in part.

Edda Emmanuelli Perez
General Counsel


[1] The protester advances additional collateral arguments. While we do not address all of the protester's arguments, we have considered them and conclude that they provide no basis to sustain the protest. For example, the protester alleges that the agency only compared adjectival ratings for the past performance factor concluding that both vendors were equivalent for this factor because they were both evaluated as low risk. Protester's Comments and Supp. Protest at 26-28. However, this ignores that the source selection decision included significant discussion of past performance prior to the tradeoff discussion. See, e.g., AR, Tab D, Source Selection Decision at 51-58. While the agency's tradeoff narrative did not include significant discussion of past performance, it reiterated that the low-risk ratings meant that little doubt existed that either vendor could perform the effort. Id. at 94. Moreover, the tradeoff included a lengthy discussion comparing the two quotations but did not include past performance as part of the discussion of what distinguished the quotations. Id. at 95-96. Accordingly, the record establishes that the source selection authority substantively considered past performance in reaching the adjectival ratings, and it is reasonable to conclude, as the agency contends, that the source selection authority simply did not consider past performance as a meaningful distinction between the two quotations.

[2] BAH also advanced separate disparate treatment arguments in its supplemental protest. See Protester's Comments and Supp. Protest at 28-32. In this regard, the protester argues that the agency engaged in impermissible unequal treatment by awarding strengths for four of Guidehouse's key personnel because they exceeded the requirements of the solicitation when BAH's key personnel for those positions had similar or superior credentials but received no strengths. Id. The agency argues that these arguments are untimely because BAH already knew that several of its key personnel did not receive strengths months before it filed this protest. Supp. MOL at 12.

We do not agree that these arguments are untimely because they rely on information concerning the awardee's key personnel that the protester was unaware of--and could not have reasonably been aware of--prior to its receipt of the agency report. However, while these new arguments are not untimely, we conclude that they are legally insufficient. In this regard, to prevail on an allegation of disparate treatment, a protester must show that the agency unreasonably downgraded its quotation for deficiencies--or unreasonably failed to credit its quotation for strengths--that were substantively indistinguishable from, or nearly identical to, those contained in other quotations or proposals. See Office Design Group v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020); Battelle Memorial Inst., B-418047.3, B418047.4, May 18, 2020, 2020 CPD ¶ 176 at 5. Here, the protester's key personnel allegations do not, on the face of its protest, meet this standard.

For example, the protester alleges that BAH's candidate for the senior federal healthcare finance advisor position possessed a doctoral degree (PhD) while Guidehouse's candidate only possessed a master's degree, but only Guidehouse's candidate received a strength despite otherwise similar resumes. See Protester's Comments and Supp. Protest at 31-32. The protester's argument, however, ignores material differences between the candidates. In this regard, the protester explains that the relevant position description required, among other things, more than 10 years of experience in federal healthcare budget formulation, a master's degree, and experience working at or with the Office of Management and Budget (OMB). Id. Also, according to the supplemental protest, BAH's candidate has a PhD, as well as 11 years of relevant experience primarily as a consultant and military officer, including some experience in working with OMB as a liaison. Id. By contrast, also according to the supplemental protest, while Guidehouse's candidate does not have a PhD, the candidate has more than 20 years of relevant experience--nearly double that of BAH's candidate--including working in a senior budget role at OMB and serving as the acting Chief Financial Officer of a cabinet-level federal agency. See Protester's Comments and Supp. Protest at 32 and exh. 5.

To summarize, even taking the facts alleged in the supplemental protest as true, the candidates have both qualitatively and quantitatively different budget formulation experience, different OMB experience, and different degrees. Contrary to the protester's initial suggestion that the candidates were similar except for their degrees, the facts alleged in the supplemental protest establish that the candidates materially and qualitatively differ in every way that mattered to the evaluation. In short, on the face of the protest and reading the allegations in the light most favorable to the protester, the protester has not credibly alleged that the agency disparately evaluated aspects of the vendors' quotations that are substantively indistinguishable or nearly identical. Accordingly, we conclude that these protest grounds are legally insufficient and dismiss them.

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