Highlights
Right Direction Technology Solutions, LLC (RDTS), of Honolulu, Hawaii, protests the Department of the Army's award of a contract to Strativia, LLC, of Largo, Maryland, pursuant to request for proposals (RFP) No. W912CN-18-R-0002 to provide various information technology, visual information, and administrative support services for the Tripler Army Medical Center (TAMC) at Oahu, Hawaii. RDTS complains that the agency failed to adhere to the terms of the solicitation and failed to treat offerors equally.
We deny the protest.
We deny the protest.
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order.
The entire decision has now been approved for public release.
Decision
Matter of: Right Direction Technology Solutions,
LLC
File: B-416615.2
Date: October 26, 2018
William K. Walker, Esq.,
Walker Reausaw, and Kenneth A. Martin, Esq., The Martin Law Firm, PLLC, for the
protester.
Eden Brown Gaines, Esq., Brown Gaines, LLC, for Strativia, LLC, the intervenor.
Major Felix S. Mason, and Scott N. Flesch, Esq., Department of the Army, for
the agency.
Glenn G. Wolcott, Esq., and Christina Sklarew, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest is denied where the record establishes that the
agency properly applied the solicitation’s stated evaluation factors, and evaluated
offerors’ proposals consistently and equally against common evaluation criteria.
DECISION
Right Direction Technology Solutions, LLC (RDTS), of
Honolulu, Hawaii, protests the Department of the Army’s award of a contract to
Strativia, LLC, of Largo, Maryland, pursuant to request for proposals (RFP) No.
W912CN-18-R-0002 to provide various information technology, visual information,
and administrative support services for the Tripler Army Medical Center (TAMC) at
Oahu, Hawaii. RDTS complains that the
The agency states that
the TAMC “serves as the premier Health Readiness Platform in the Regional
HealthCare Pacific (RHCP) area of responsibility by providing high quality,
safe, patient centered healthcare . . . and ensuring a medically ready force.”
Agency Report (AR), Tab 9, RFP at 26.
agency failed to adhere to the terms of the solicitation and failed to treat
offerors equally.
We deny the protest.
BACKGROUND
In December 2017, the agency issued the solicitation as a
100% small business set‑aside under section 8(a) of the Small Business Act,
seeking proposals that would lead to the award of a fixed-price contract for a
12‑month base period, four 12‑month option
The solicitation stated
that the period of performance (POP) for the base period would run from August
1, 2018 through July 31, 2019. RFP at 95.
periods, and one 6-month option period. RFP at 80-94, 134.
The solicitation stated
that the contract requirements had been consolidated from three prior
contracts. RFP at 63.
Citations to the RFP in
this decision refer to the final conformed solicitation, submitted in the AR at
Tab 9.
The solicitation provided for award on a lowest-price technically acceptable
(LPTA) basis and established the following evaluation factors: technical
capability, past performance, and price. Id. at 106. As
With regard to technical
capability, the solicitation required that each offeror submit a management and
staffing plan that identified the number of personnel within the associated
labor categories on which its price was based. RFP at 107.
amended, the solicitation also provided for a 20-day phase in period, stating:
The Contractor shall provide a
detailed phase-in/out plan, which discusses the Offeror’s scheduling,
phasing-in of all functional activities outlined in the PWS [performance work
statement], and milestone dates for implementation. The phase-in period shall
be completed within 20 calendar days from contract award and a phase out period
shall be 30 calendar days upon notice of award of a new contract in the event
of any follow-on procurement.
RFP at 44.
Finally, the solicitation directed offerors to include
pricing for the phase-in period in their prices for the base performance
period. Id. at 76.
The solicitation’s
pricing schedule did not contain a separate contract line item number for the
phase-in requirements.
On or before the closing date, proposals were submitted by
12 offerors, including RDTS and Strativia. RDTS’s proposal for the base
performance period reflected a lower number of manhours than it proposed for
the option periods on the basis that, as RDTS subsequently explained:
During the transition, we
anticipate that Incumbent contractor personnel currently performing the work
will continue supporting the requirement prior to our Team taking full control,
management and performance responsibility of the work. This approach is
specifically designed to minimize the cost impact[].
RDTS’s proposal stated
that it would perform the transition/phase-in activities “at no additional cost
to the Government.” AR, Tab 15, RDTS Price Proposal, Mar. 12, 2018, at 2.
. . .
AR, Tab 23, RDTS Response to Discussion Questions, at 6.
On May 10, the agency opened discussions with the
offerors, and sent a discussion letter to RDTS that, among other things, noted
that RDTS’s proposed level of effort for the base performance period appeared
to be inadequate. AR, Tab 18, RDTS Discussion Letter, at 2.
On May 16, RDTS sent an email to the agency seeking
clarification of the solicitation requirements with regard to the transition/phase-in
period, asking: “will the performance of the incumbent contract continue for
[the phase-in period] after contract award . . . allowing for transition
activities of the newly awarded contract?” AR, Tab 20, RDTS/Agency Emails, at
2. Consistent with its theory that the incumbent would continue to be
responsible for contract performance during the first part of the base
performance period, RDTS further queried whether it should assume that “the
start of performance and service payments will begin [at the end of the
phase-in period] after contract award?” Id.
On May 18, the agency responded, stating “[t]he transition
period is expected to start 30 days before the POP [period of
The solicitation was
subsequently amended to reduce the transition/phase-in period to 20 days.
performance] start date,” elaborating that “[t]his
As noted above, the
solicitation stated that the POP for the base period would begin on August 31,
2018. RFP at 95.
will allow the awardee time to prepare for the contract, hire employees, etc.”
Id. at 1.
On May 22, RDTS responded, stating that it understood the
agency’s response and was increasing its level of effort, and proposed price,
for the base period, explaining:
With the Government’s clarification
to our question submitted in regards to the start of the transition period and
overlap with the incumbent contract being allotted before the start of the new
contract period of performance, we have revised our pricing to properly
allocate hours for the first month of performance for our anticipated contract
staff. Although our revised price now covers a full 12 months of personnel
service, we still elect to not charge the Government for the transition period.
AR, Tab 23, RDTS Response to Discussion Letter, at 4.
Thereafter, final proposals were submitted and evaluated.
RDTS and Strativia’s proposals were each evaluated as acceptable under the
non-price evaluation factors. Strativia’s proposal
Nine of the 12 offerors’
proposals were determined to be acceptable under the non‑price evaluation
factors. AR, Tab 31, Source Selection Decision Document, at 2.
offered the lowest price ($8,241,173); RDTS’s proposal offered the
second-lowest price ($8,271,217). AR, Tab 31, Source Selection Decision
Document, at 2. Accordingly, Strativia’s proposal was selected for
award. This protest followed.
DISCUSSION
RDTS protests
that the agency “failed to adhere to its disclosed evaluation criteria” and
“failed to treat offerors equally.” Protest at 11-13. As discussed below,
RDTS’s assertions are without merit.
First, with
regard to the agency’s alleged failure to apply the solicitation’s stated
evaluation factors, RDTS complains that the solicitation should have been
construed as providing that the phase-in period began on the same date as the POP
start date--thereby permitting RDTS to propose (and price) a decreased
level-of-effort during the first month of contract performance. Protest at
11-12. Based on this assertion, RDTS maintains that it should have received
award on the basis of its initially-proposed price--which reflected a decreased
level-of-effort, and a price that was lower than the award price. Id.
Finally, RDTS complains that, “after the Army stated . . . that the transition
period would begin before the period of performance,” RDTS was “confronted with
the dilemma of either increasing its proposed price . . . or leav[ing] its
proposed price unchanged with the hope of being able to recover the [phase-in]
costs . . . as a change order.” Protest at 11.
The agency
responds that it did, in fact, apply the solicitation’s stated evaluation
criteria, noting that the solicitation contemplated award on an LPTA basis;
that Strativia’s proposal was properly evaluated as acceptable under the
non-price factors; and that Strativia’s proposal offered the lowest price.
The agency
further responds that, to the extent RDTS’s protest reflects its view that RDTS
should have been permitted to price its proposal based on less than a 12-month
base period, its protest is not timely filed. In this regard, the agency notes
that, during discussions, it explicitly advised RDTS that phase-in activities
were to be performed prior to the performance start date,and
As noted above, the
solicitation expressly provided that the start date for the base performance
period was August 1, 2018 and ran through July 31, 2019. RFP at 95.
that the requirement to perform those activities did not reduce the stated
length of the base performance period. Finally, the agency notes that RDTS
expressly acknowledged its understanding of this matter in its May 22, 2018
response to the agency’s discussion letter. See AR, Tab 23, RDTS
Response to Discussion Letter, at 4. In summary, the agency states that RDTS’s
protest is based on the assertion that it should have been permitted to propose‑-and
be evaluated on--a level of effort for the base period that was less than the
12 months specified in the solicitation and that, following discussions, this
assertion reflects, at best, a patent ambiguity which RDTS was required to
protest before submitting its final proposal.
In reviewing
protests alleging an agency’s failure to evaluate proposals on the basis of the
solicitation’s stated criteria, our Office will review the record to determine
whether the agency’s evaluation was reasonable and consistent with the
solicitation’s stated evaluation factors and applicable statutes and
regulations. See, e.g., FP-FAA Seattle, LLC, B-411544,
B-411544.2, Aug. 26, 2015, 2015 CPD ¶ 274
at 7. While solicitations must inform offerors of the basis for proposal
evaluation and source selection, and the agency’s evaluation must be based on
the factors identified in the solicitation, the solicitation need not
specifically identify every area that may be taken into account where offerors
are reasonably on notice of the areas that the evaluation will encompass. See,
e.g., MicroTechnologies, LLC, B‑403713.6, June 9, 2011, 2012 CPD ¶ 131 at 3.
Further, it is well-settled that a party who has the
opportunity to object to allegedly improper or patently ambiguous terms in a
solicitation, but fails to do so prior to the time set for receipt of proposals,
waives its ability to raise the same objection later. See, e.g.,
Baldt Inc., B-402596.3, June 10, 2010, 2010 CPD ¶ 139
at 2. We have noted that this rule prevents an offeror from taking
advantage of the government, as well as other offerors, by waiting silently
during the procurement process, only to spring forward after award with an
alleged defect in an effort to restart the procurement. See, e.g.,
Del-Jen Educ. & Training Grp./Flour Fed. Sols. LLC, B-406897.3, May
28, 2014, 2014 CPD ¶ 166 at 7 n.9.
Here, based on our review of the record, it is clear that
the agency adhered to the solicitation’s stated evaluation factors. As noted
above, the solicitation contemplated award on an LPTA basis, and Strativia’s
proposal offered the lowest price of the offerors’ proposals that were
evaluated as acceptable under the non-price factors. Further, to the extent
RDTS’s protest is based on the agency’s alleged failure to properly construe
the terms of the solicitation, the protest is untimely. The record shows that
the solicitation stated that: an offeror’s price for phase-in activities was
to be included in its proposed price for the base performance period; the
agency explicitly advised RDTS that phase-in activities were to be performed
prior to the performance start date; and RDTS expressly acknowledged its
understanding of this matter. In this regard, RDTS is, now, essentially
arguing that it should have been permitted to ignore the solicitation’s
requirement to include phase-in costs in its price, and incur such costs that would
not be considered for purposes of the source selection decision, but which RDTS
“hope[d]” to subsequently recover through a change order. See Protest
at 11. On the record here, RDTS’s various complaints regarding the agency’s
application of the solicitation’s provisions provide no basis to sustain its
protest.
Next, RDTS asserts that the agency did not treat the
offerors equally, speculating that Strativia’s final proposal must have been
based on a reduced period of performance for the base period, as RDTS’s initial
proposal had been. Protest at 13.
The agency responds that RDTS was the only offeror that
submitted a proposal that contemplated less than 12 months of performance for the
base period. AR, Tab 2, Contracting Officer’s Statement, at 4. More
specifically, the agency states that none of Strativia’s proposal submissions
priced the base year differently from the option years. Finally, the agency
notes that Strativia’s proposal stated that its transition would include
“off-hours interviewing, training, and onboarding,” AR, Tab 16, Strativia
Proposal Vol. II, at 6, indicating that Strativia understood that the
transition/phase-in requirements would occur prior to the POP start date for
the base period. In short, the agency maintains that RDTS’s and Strativia’s final
proposals were both evaluated based on 12 months of contract performance
for the base period, and that the agency evaluated them consistently and
equally against the solicitation’s stated criteria.
As noted above, an agency must evaluate proposals against
the solicitation’s stated evaluation factors, and must do so even-handedly. See,
e.g., FP-FAA Seattle, LLC, supra; Fitnet Purchasing All.,
B-410263, Nov. 26, 2014, 2014 CPD ¶ 344 at 8-9.
Here, contrary to RDTS’s assertions, the record establishes
that Strativia’s proposal was, in fact, based on full performance for the base
period, and the record further establishes that the agency evaluated the
proposals consistently and equally against the solicitation’s stated evaluation
factors. RDTS’s assertions of unequal treatment are without merit.
The protest is denied.
Thomas H. Armstrong
General Counsel
This is a verbatim capture of GAO's own published decision. Nothing is summarized or reworded, and the sections run in the order GAO wrote them. One thing is moved: GAO collects its numbered notes at the foot of the document, and each is shown here under the paragraph that first cites it, with its own number carrying you back. A note the decision never cites stays where GAO printed it.