Government Contracts Monitor

No Matter How Hard You Fight, Winning the Battle May Not Mean Winning the War

July 11, 2014

By: Eric Whytsell

In the recent matter of Gaver Technologies, Inc., B-409535 (Comp. Gen. June 3, 2014), the Government Accountability Office (GAO) sided with the protester against the National Aeronautics and Space Administration (NASA) after a hearing and careful consideration of the record. However, all the protester’s hard work may come to naught. The protest outcome – a recommendation that the source selection authority (SSA) make a new source selection decision in light of the GAO’s findings – still may not result in an award to the protester.

Gaver involved a best value procurement for IT Services that was to be decided based on three factors of approximately equal weight: mission suitability; relevant experience/past performance; and cost. The mission suitability factor included three subfactors: technical requirements (45%); management plan (35%); and work management (20%). Under the technical requirements subfactor, offerors’ technical approaches and their responses to three sample scenarios were to be evaluated, with an emphasis on proposed innovative processes, systems, and technologies for accomplishing and/or streamlining the required tasks. The management plan subfactor focused on an evaluation of the offeror’s organizational structure and management; risk management plan; phase-in plan; staffing, recruitment, retention and compensation; subcontractor management; and key personnel.

Out of the six offers received by NASA, protester Gaver Technologies, Inc. (GTI) and the awardee, Peerless Technologies, Inc. (Peerless), received the highest ratings from the SEB. Peerless’ overall technical score of 825 was less than GTI’s score of 876, but Peerless’ proposed and probable costs were less than those of GTI. Both offerors received a rating of High Confidence for the relevant experience/past performance factor. Of significance to the protest, the SEB noted five significant strengths for GTI under the technical requirements factor, three of which were for insights and proposed innovations under the technical approach subfactor. In addition, the SEB awarded Peerless a significant strength under the management plan factor for proposing a phase-in period of only 30 days and gave Peerless credit for a management structure mirroring that of NASA’s Office of Chief Information Officer (OCIO). The SEB supported its findings with explanatory detail and briefed the SSA.

In reaching the decision to award the contract to Peerless, the SSA questioned the overall impact of the SEB’s findings regarding GTI’s technical approach because of “offsetting considerations” concerning whether the agency would be able to benefit from the proposed innovations due to increased cost. With respect to the evaluation of Peerless, however, the SSA agreed with the SEB’s findings under the management plan subfactor and concluded that Peerless’ proposal had a slight advantage on the Mission Suitability factor. She also decided that, while both offerors received the same High Confidence rating under the relevant experience/past performance factor, Peerless had a slight edge because of the highly relevant experience of its team members and overall successful performance of its major subcontractor. Similarly, she noted that and their probable prices were almost equal, with Peerless’ price being slightly lower. Ultimately, the SSA found that, since Peerless’ proposal “offered slight advantages under each of the three factors, it represented the best value to the government.”

After receiving notice of the award and a debriefing, GTI protested on a number of grounds, including the assertions that: (i) the SSA failed to adhere to the evaluation scheme described in the RFP by unreasonably failing to credit GTI’s proposal for any of the proposed innovations identified by the SEB; (ii) both the SEB and the SSA unreasonably gave Peerless credit for a 30-day phase-in plan; and (iii) both the SEB and SSA improperly failed to treat the offerors equally regarding their proposals to provide a management structure that mirrors that of OCIO.

With respect to the first ground, testimony elicited at a hearing before the GAO demonstrated that the SSA’s decision to give GTI’s proposed innovations little weight was without support in the record and unreasonable. While the SSA initially claimed that she did not have high confidence that the innovations would work due to their unknown implementation costs, the hearing testimony made clear that a substantial portion of those innovations would not entail additional costs. At the hearing, the SSA attempted to explain that she also had concerns about the level of detail about the innovations provided in GTI’s proposal. However, GAO found that explanation to be unsupported by the contemporaneous record, as it contains no references to such concerns or even a reason to believe the SSA had closely reviewed the proposal herself.

GAO also found for GTI on the phase-in plan issue, noting that, while Peerless’ proposal claimed the ability to phase-in within 30 days, it actually proposed a 60-day phase-in period (like GTI). On the issue of unequal ratings for the same management structure, NASA admitted that GTI also offered a management structure that mirrors that of OCIO but claimed that the significant strength Peerless received was based on more than such a structure. The GAO noted that, while the SEB evaluation did appear to be based on more than simply the structure, the SSA’s selection decision appear to emphasis only the fact that the structure mirrors that of OCIO, which does not by itself provide a basis for distinguishing the two offers.

Based on these findings, GAO recommended that the SSA make a new source selection decision taking the GAO’s findings into account. However, it remains to be seen whether this protest outcome will ultimately result in an award to GTI. Given the SSA’s apparent disagreement with the SEB’s conclusions, it seems fairly likely that the SSA will simply write a better source selection decision that comes to the same conclusion as before. While such an outcome does not counsel against filing a protest in all cases, it does underscore an important fact: in the protest context, winning the protest is not necessarily the same thing as winning the award.

J. Eric Whytsell is the attorney responsible for the content of this article.

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