March 2022 Bid Protest Roundup: Delayed Debriefings, Conflicts Of Interest, And Insufficient Documentation

Morrison & Foerster LLP - Government Contracts Insights

This month’s Bid Protest Roundup covers two recent Government Accountability Office (GAO) decisions and a decision from the Court of Federal Claims. All involve defense procurements, but each offers a unique lesson for offerors and government procurement professionals. This Roundup features a protester that fell victim to a timeliness trap by postponing debriefing, an unsuccessful challenge to an agency’s organizational conflict of interest (OCI) determinations, and an agency’s defeat due to an inadequately documented past performance evaluation.

Battelle Memorial Institute

In Battelle Memorial Institute,[1] the GAO dismissed as untimely a challenge to a Navy assessment of the protester’s qualifications in its response to an architectural and engineering (A/E) procurement conducted under Federal Acquisition Regulation (FAR) subpart 36.6.

In an A/E procurement, the FAR directs agencies to issue a “synopsis” to which interested firms respond by submitting their qualifications using Standard Form 330 (“SF 330”). An agency evaluation board reviews offerors’ SF 330s and prepares a report recommending at least three firms that the board considers the most highly qualified. A source selection authority then reviews the board’s report and creates a ranked list of firms, called a “final selection.” The final selection both authorizes the contractor to begin negotiations and specifies, in order, the firms with which the contracting officer may negotiate a contract. The contracting officer begins negotiations with the most qualified firm and, if negotiations fail, proceeds down the list until an agreement is reached.

The Navy issued a synopsis for a five-year, $100 million indefinite delivery/indefinite quantity (IDIQ) contract. Five firms, including Battelle, responded. The review board evaluated the firms and selected Geosyntec Jacobs as the most qualified. The Navy informed the other offerors of the results, and gave unsuccessful offerors the choice of either a pre-award briefing or post-award debriefing. Initially, Battelle requested a pre-award briefing, but two days later changed its request to a post-award debriefing. More than six months later, on November 30, 2021, the Navy awarded the contract to Geosyntec Jacobs; Battelle learned of the award the following day. Battelle received its post-award debriefing on December 9, 2021, then filed a protest with the GAO on December 10, arguing that the Navy’s evaluation of its SF 330 was unreasonable and that Battelle should have been selected as the most highly qualified firm.

The Navy requested dismissal of the protest as untimely because Battelle did not request a pre-award debriefing. The Navy argued that, by selecting a post-award debriefing, Battelle failed to diligently pursue its protest grounds, which would have been discovered in the pre-award debriefing. In the Navy’s estimation, Battelle’s arguments were based on information it would have received if it elected to receive a pre-award debriefing. The GAO agreed.

The GAO emphasized that its timeliness requirements sprang from “the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process.”[2] The GAO related this timeliness requirement to those for challenging improprieties in solicitations, which must be asserted before receipt of proposals, or within 10 days after the basis for a protest is known or should have been known. The resulting timeliness trap is similar to the timeliness trap that may accompany a competitive range determination.[3] If excluded from the competitive range, an offeror may request a debriefing, which the agency is obliged to provide; the offeror may, however, choose either a pre-award or post-award debriefing. The GAO has held that an offeror’s choice of a post-award debriefing waives future challenges of an agency’s competitive range determination.[4]

Takeaways

Disappointed offerors must pay close attention to each instance in which a debriefing is required or offered as a matter of right. In choosing to delay a debriefing, an offeror may waive certain protest grounds. This is true not only in A/E procurements, but also with respect to exclusions from a competitive range under FAR part 15 negotiated procurements.

Trident Technologies

Organizational conflicts of interest (OCIs) are a perennial concern for offerors. A protest may be sustained if a protester can demonstrate the existence of an OCI through “hard facts” or by proving that an agency failed to consider relevant factors and reach a rational decision in response to an OCI allegation.

In Trident Technologies,[5] Trident Technologies (“Trident”) filed a bid protest at the Court of Federal Claims (COFC) challenging the Missile Defense Agency’s (MDA) award of a contract for infrastructure, operations and maintenance, and cybersecurity engineering support to DTechLogic, LLC. Trident argued, among other grounds, that the award should be set aside because the MDA failed to investigate or mitigate alleged OCIs.[6] Trident alleged six OCIs, three for impaired objectivity and three for unequal access to information.

The solicitation contained numerous provisions regarding OCIs. These included extensive disclosure requirements and disclosure forms, such as requirements that offerors identify their MDA-funded contracts and subcontracts as well as non-MDA-related business relationships with firms that independently do business with MDA. The solicitation also directed offerors to update their OCI assessments in the event of any changes. Finally, the solicitation incorporated the MDA’s OCI policy memorandum, which provides that “contractors which provide advisory and assistance services to the Agency, particularly in the engineering, acquisition support, and quality functional areas, cannot develop or support the development of the Agency’s research and development (R&D) efforts.”

Initial proposals were received in October 2018. During the evaluation process, the agency reviewed DTechLogic’s OCI statements and documented its findings. The MDA was unable to determine whether an OCI arose from some of DTechLogic’s prior work for the Army; MDA contacted the Army for more information. The Army responded that there were potential OCI concerns because of the nature and scope of DTechLogic’s work. The MDA program manager received a copy of the scope of work from the Army, but concluded that, although the efforts were similar, the alleged conflicts did not give an unfair advantage to DTechLogic. Ultimately, the MDA selected DTechLogic for the award.

Following the award, Trident and another disappointed offeror filed a protest at the GAO alleging (among other grounds) that the MDA failed to recognize OCIs apparent in DTechLogic’s proposal. The agency announced it would take corrective action, and the GAO dismissed the protest as academic.

The corrective action included a review of the potential OCIs raised at the GAO. The MDA requested and received information from DTechLogic about one of its subcontractors and a joint venture member. The agency found a potential impaired objectivity OCI for the subcontractor, and, following discussions, DTechLogic removed the subcontractor from its proposed team. The agency investigated the joint venture member and another subcontractor, and verified the information DTechLogic provided. The MDA also convened internal OCI review panels and documented the findings of each investigation.

After the agency again awarded the contract to DTechLogic, Trident filed a protest at the COFC, alleging six OCIs of two different types: impaired objectivity and unequal access to information. Trident alleged the MDA failed to properly investigate these circumstances to determine whether such an OCI existed.

The agency countered that it had considered each impaired objectivity OCI that Trident alleged, and had created a reasonable mitigation plan that considered all relevant factors necessary to support its determination. The MDA also countered that it, not the contractor, would conduct and direct the relevant tests, and the contractor would have no role in designing or running the tests, thus eliminating any impaired objectivity concerns. Finally, the agency contended that Trident’s unequal access to information allegations were speculative, and lacked facts necessary to prove Trident’s claims or identify what competitively advantageous information DTechLogic supposedly derived from its prior contracts.

The court found the contracting officer had addressed each OCI plaintiff alleged in its investigation, and created a reasonable mitigation plan fitting the circumstances. Trident’s allegations amounted to mere disagreement with the contracting officer’s conclusions. The court maintained that it would not find an OCI based upon inferences or suspicions, and found that Trident did not advance sufficient “hard facts” to show there was an OCI or explain how the approved mitigation plan was unreasonable or inadequate.

Takeaways

A court will provide substantial deference to a contracting officer’s OCI determination. To mount an effective challenge, a protester needs to bring “hard facts” showing that the agency failed to consider an important factor, or that its mitigation plan is fundamentally flawed. Absent “hard facts” demonstrating an OCI, a court will likely find that the allegation is speculative or a mere disagreement with the agency’s determination. Firms that have potential or actual OCIs should work closely with the contracting officer to ensure the circumstances and mitigation plan are well-documented, and support a reasonable determination entitled to the deference that the MDA received in Trident.

Starlight Corporation

The GAO has little patience for agencies that fail to document evaluations. If a protester discovers that key evaluation determinations lack adequate documentation, this can be fertile ground for a supplemental protest. In Starlight Corporation,[7]the GAO sustained a challenge to a past performance evaluation, finding that the Air Force failed to adequately document its findings.

Starlight protested the award of a contract for the servicing of Air Force transport aircraft at Dover Air Force Base on the grounds that the agency conducted an unreasonable past performance evaluation. The solicitation called for the award of a single contract as a small business set-aside pursuant to FAR Part 15. The evaluation procedures set forth in the solicitation indicated that technically acceptable offers would be evaluated for past performance and price, and that a tradeoff would be made between past performance and price, with past performance being significantly more important than price. The past performance evaluation examined the recency, relevance, and quality of past performance in the offerors’ proposals and past performance information that the agency obtained through other sources.

Starlight and four other offerors submitted proposals. The Air Force determined that only one offeror, Empire Aircraft Services (Empire), had submitted a technically acceptable proposal and awarded the contract to it after determining its price was fair and reasonable. Starlight protested at the GAO, prompting the Air Force to take corrective action that resulted in dismissal of the protest. The Air Force then determined that all four offerors were in the competitive range, opened discussions, and requested and received final proposal revisions (FPRs).

The agency assigned Starlight a past performance rating of “Satisfactory Confidence,” while Empire received a rating of “Substantial Confidence.” Although Starlight proposed a lower price, the Air Force concluded that Empire’s superior past performance was worth the price premium and again awarded the contract to Empire.

Starlight filed another protest at the GAO, arguing that the agency failed to properly consider both its and Empire’s past performance and that it had conducted a flawed best-value determination. Although the Air Force found Empire’s past performance relevant, Starlight pointed to the lack of documentation regarding this relevancy determination. Without these records, Starlight contended, the Air Force could not show that it considered the scope, complexity, dollar value, or extent of subcontracting or teaming of Empire’s past performance as required by the solicitation. Starlight asserted that this made the relevancy determination unreasonable, rendering the past performance rating unreasonable as well. Starlight also alleged that the Air Force unfairly assigned low scores to its past performance questionnaires (PPQs), assigning “Satisfactory” scores despite the references’ overall exceptional ratings.

The GAO observed that, although evaluation of past performance is generally within an agency’s discretion, it will question that evaluation if it is unreasonable or undocumented. In such circumstances, the agency bears the risk that the GAO may be unable to conclude there was a reasonable basis for the results of the agency’s evaluation.

The GAO determined that there was not enough documentation to conclude that the Air Force’s evaluation of Empire’s past performance was reasonable. The only record indicating that the Air Force evaluated the relevancy of past performance at all was a table in the Source Selection Evaluation Board (SSEB) report providing a past performance relevancy score for each offeror. There was no documentation of the relevance of the previously performed contracts to the solicitation requirements or rationale for the relevancy ratings that the Air Force assigned.[8]

The Air Force contended that nothing prohibits an agency from assessing relevancy with a “binary assessment.” The GAO was not persuaded, however, and pointed out that while there was no prohibition on assigning a binary assessment, evaluations must be sufficiently documented to permit review of the agency’s conclusions. A lack of supporting information prevents the GAO from finding a reasonable basis for the agency’s evaluation.

The GAO also found that Starlight was prejudiced by the Air Force’s review of its PPQs. The solicitation required offerors to submit PPQs for their past performance references. The PPQ form requested a narrative explanation for marginal or unsatisfactory ratings, in the event cure or show cause notices were received, or where the reference indicated that the evaluator would not make another award to the company. The SSEB report showed that evaluators relied on these narratives to support confidence ratings.

In one PPQ, Starlight received a rating of “Exceptional” and “Good,” and the reference attached no comments. The SSEB, citing the lack of additional comments, downgraded that rating to “Satisfactory.” In another PPQ, Starlight received an “Exceptional” rating but the SSEB determined the comments only showed Starlight met requirements, and it downgraded the score to “Satisfactory” as well. The GAO did not object to the second downgrade even though the RFP did not inform offerors that the agency would rely on narratives. The GAO ruled that it was not unreasonable for the Air Force to place greater emphasis on the comments than on the adjectival rating. In the first PPQ, however, there was no inconsistency between the ratings and the narrative—in fact, there was no narrative at all—yet the Air Force still downgraded the PPQ’s “Exceptional” rating to “Satisfactory.” The PPQ form did not require remarks for ratings of “Exceptional” or “Good,” thus the GAO found that the Air Force had improperly downgraded that rating.

Takeaways

The GAO will sustain a protest where a lack of documentation renders it unable to find a reasonable basis for the agency’s decision. The cursory documentation of the results in the SSEB report were not enough to demonstrate that the evaluators considered the past performance relevance factors provided in the solicitation.

Additionally, agencies must ensure consistency in their forms and solicitations, which may be drafted independently of each other. The evaluators treated the remarks sections of PPQs in a very different way than was described on the form itself, and offerors received no notice that the agency would weigh narrative comments more heavily than adjectival ratings. Procuring agencies should carefully consider whether there may be conflicting instructions between the solicitations they write and the standardized forms they use.


[1] B-420403, Mar. 10, 2022, 2022 CPD ¶ _____; 2022 WL 808145.

[2] Citing United Int’l Investigative Servs., Inc., B‑286327, Oct. 25, 2000, 2000 CPD ¶ 173 at 4.

[3] VMD Systems Integrators, Inc., B-412729, Mar. 14, 2016, 2016 CPD ¶ 88.

[4] Id.

[5] Trident Techs., LLC v. United States, No. 21-2035C, 2022 WL 600261 (Fed. Cl. Mar. 1, 2022).

[6] OCIs can take different forms. Relevant here are the impaired objectivity OCI and unequal access to information OCI. Impaired objectivity OCIs occur when a contractor is applying its judgment or providing advice, but its interests could be affected by the judgment or advice it provides to the government. This can occur if a company is placed in a position where it will examine the performance of itself, an affiliate, or a competitor. The issue is not whether biased advice is provided, but whether a reasonable person would find the company could have been impaired. Unequal access to information occurs when a contractor (or one of its subcontractors or a member of its performance team) has access to non-public information that could provide a competitive advantage relative to other contractors. An OCI may be found if the contractor has access to the information, and actual use of the information does not have to be shown.

[7] B-420267.3, Mar. 14, 2022, 2022 CPD ¶ _____; 2022 WL 912078

[8] The GAO also noted that the Air Force failed to document its tradeoff analysis. Although the Air Force stated that it conducted a tradeoff between price and past performance, the GAO found no supporting analysis in the record.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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