Competitor’s Risky Plan May Provide Basis for Protest
October 19, 2015
By: Eric Whytsell
Disappointed offerors sometimes struggle to find viable protest grounds, but savvy firms know the importance of looking beyond the factual circumstances at the time of award. Depending on the stated evaluation criteria, learning the competition’s plans for the future may hold the key to a successful protest. The value of such an approach was recently demonstrated in the Government Accountability Office (GAO) decision in Tantus Technologies, Inc., B-411608, B-411608.3 (September 14, 2015).
The case involved the protest of a task order award under a request for proposals (RFP) issued by the Department of Health and Human Services (HHS. The RFP provided for a best value award taking into account a number of non-cost evaluation factors, including: (1) technical approach and understanding; (2) personnel and management; (3) project organization and management plan; and (4) corporate experience and past performance. Significantly, in addition to directing offerors to submit as part of their proposals a staffing plan identifying the individuals who would be performing work under the task order, the RFP provided that with respect to the personnel and management factor, CMS would evaluate the “extent to which the [offeror’s] proposed staffing plan ensures that appropriately qualified staff are available to meet the requirements of this contract on an ongoing basis.”
CMS received proposals from six offerors, including protester, Tantus Technologies, Inc. (Tantus), and awardee, Edaptive Systems LLC (Edaptive). During its best-value tradeoff analysis, the agency ranked Edaptive’s proposal first overall under the non-cost evaluation factors. While Tantus’s proposal was the next highest ranked in technical merit, CMS found that the cost savings offered by Tantus’s proposal were not significant enough to outweigh the benefits of Edaptive’s technically superior proposal. Upon learning this through a debriefing, Tantus timely filed its protest.
Among other protest grounds, protester Tantus argued that CMS had improperly failed to consider whether Edaptive’s plans to relocate a significant portion of its employees after the first year of the task order posed a risk to Edaptive’s ability to retain qualified staff under the personnel and management factor. The record revealed that Edaptive proposed to reduce labor costs by moving a portion of its workforce out of the Baltimore area for the option years of the task order to take advantage of the relatively lower wages elsewhere. Tantus argued, however, that Edaptive’s proposal failed to address its ability to retain those employees it planned to relocate – and that the relocation strategy should have been evaluated as a significant weakness under the personnel and management factor and undermines the agency’s assessment of a significant strength based on the awardee’s proposed use of incumbent personnel.
In response, GAO noted that the record did not demonstrate that the agency considered this aspect of the awardee’s proposal. Indeed, CMS did not even respond to the merits of Tantus’s argument on this issue, which GAO regards as tantamount to a concession that the agency erred in failing to evaluate Edaptive’s relocation strategy. GAO found the agency’s failure to consider Edaptive’s proposed relocation of staff was both unreasonable and inconsistent with the evaluation criteria of the RFP because that strategy, which would require a significant geographic change for a substantial portion of its workforce, was relevant to the awardee’s ability to provide qualified staff after the base year of the task order. On this basis (among others), GAO sustained the protest.
Of course, Tantus may not have known of Edaptive’s relocation strategy at the time it decided to protest. Its attorneys may have added this protest argument after identifying the problem in the Agency Report and associated documents. Regardless of how it was known, the key to this part of the protest was the ability to recognize the significance of CMS’ failure to consider Edaptive’s future plans.
You need to be on the lookout for competitors’ plans that undercut their proposals and ready to raise the issue in a protest if necessary.
Eric Whytsell is responsible for the contents of this Article.
© Jackson Kelly PLLC 2015