April 2021 Tender Summary (Law360 Spotlight) | Morrison & Foerster LLP – Public Procurement Perspectives


Loi360 – May 6, 2021

[co-author: Markus Speidel]

This slice of our monthly Spotlight on the Law360 candidacy protest reviews three protest decisions addressing (1) the mismatches between the proposed labor categories and the scope of a vendor’s underlying General Service Administration (GSA) contract; (2) whether an agency incorrectly used an unstated evaluation criterion; and (3) whether team leaders not selected under a GSA Prime Contractor Team Arrangement (CTA) have standing to protest when they have been awarded rewards as members of the GSA. team.

In Deloitte Consulting, LLP,[i] GSA has sought to modernize cybersecurity and privacy processes, capabilities and services for more than 200 information systems using an “enterprise-wide approach” as part of a Federal Procurement Program (FSS) Task Order Solicitation (FAR Subpart 8.4). The agency needed five specific services: (1) cybersecurity support project management; (2) security architecture and innovation; (3) governance, risks and compliance; (4) strategic initiatives; and (5) support for the privacy program. Suppliers were required to submit fixed price labor rates based on existing FSS contract labor categories. The protester alleged that the services reflected in the winner’s offer went beyond the scope of the FSS labor categories on which the winner based their offer.

The Government Accountability Office (GAO) supported the protest. GAO noted that although the FSS program “gives federal agencies a streamlined process for obtaining commonly used business supplies and services,” this streamlined process does not allow an agency to purchase goods or services not listed. in the underlying FSS contract of a beneficiary. Rather, “all goods or services offered must be on the supplier’s contract schedule as a prerequisite for receipt of the order.”

GAO concluded that the labor categories in the FSS contract could not be reasonably interpreted to include the services cited by the successful bidder and required by the agency. For example, the winner cited that a “Systems Programmer II” would provide expertise in complying with privacy policies, procedures or laws for housing and urban development. However, the FSS workforce category only provides for programming and / or coding activities. Likewise, the fellow claimed that a “Systems Analyst I” would keep “abreast of developments in cybersecurity and privacy protection” and share this knowledge with the project team, but the category of FSS workers did not refer to this knowledge or expertise.

The GAO therefore recommended that the agency end the work order for convenience and reopen discussions or issue an order to the next seller, while reimbursing the protester for his costs.

Take away food

While suppliers may be willing to compete for job orders and available contracts, it remains essential that suppliers participating in competitions under the FSS program ensure that they do not offer labor categories or contracts. items that they do not offer as part of their FSS contracts. To do otherwise could jeopardize the viability of an otherwise well-drafted proposal.

In Harmonia Holdings, LLC,[ii] unsuccessful bidder has raised a host of disputes over the award by the United States Department of Agriculture (USDA) of a contract for operations and maintenance support services and support service . It should be noted that the protester alleged that USDA relied on an unspecified endpoint when assessing and comparing the past performance of Offerors. This criterion assessed “the familiarity or experience of the offerors with the strategic and commercial objectives of AMS Market News as well as [its] comprehension [of] data collection and reporting requirements. Had it not been for the use of the contested criterion, the demonstrator would have preceded the historic winner on the evaluation factors other than the price, which were “significantly more important than the price”.

The United States Federal Claims Court (“COFC”), however, dismissed the protest because the cited assessment criterion was implicit in the explicit criteria of the solicitation. Noting that a solicitation “does not need to identify the criteria intrinsic to the stated assessment factors” and that the agencies “retain great latitude in determining the scope of a given assessment factor”, the Court has said the protester had to demonstrate that the agency had “used a significantly different basis in evaluating the proposals than what was disclosed”, to prevail in the protest. The court ruled that the protester had failed to meet his burden.

The COFC concluded that the challenged criterion was not “significantly different” from the disclosed criterion assessing the past performance of suppliers with prior contracts consistent in size, scope and complexity with the performance statement of work. The court ruled that the agency placing extra weight on the experience of a competitor doing “substantially the same work” as described in the performance statement of work could not surprise a salesperson.

In so ruling, the Court also found unconvincing the protester’s argument that the use of this valuation criterion in a commercial services contract would circumvent the objective of maximizing competition. The Court found it reasonable for an agency to favor a vendor with experience with off-the-shelf software and a solid record of maintenance performance for such software in the particular context sought by the agency. The Court therefore found no reason to question the agency’s attribution of a “huge risk factor” to the demonstrator’s lack of prior and proven experience with Market News, particularly in view of the impact potentially significant economic impact from any disruption to commodity pricing systems in the market.

Take away food

Agencies cannot use unspecified evaluation criteria when evaluating proposals, but what is “unspecified” is a matter of interpretation. The court ruling, which is consistent with GAO case law, shows that much can be said to be “between the lines” of a solicitation requirement, and that agencies will generally be accorded deference to the evaluation criteria implicit in an application. solicitation.

In Sirius Federal, LLC,[iii] GSA has sought to award multiple Fixed Price Global Purchase (BPA) contracts under GSA Information Technology (IT) Annex 70 for hardware and software products, ancillary supplies and services . The bidding allowed bidders to compete for a prize using CTAs appointing a team leader and supporting team members. Although the CTAs had to differentiate between the team leader and team members, the solicitation explicitly stated that in the event the GSA chooses a CTA for the award, the CTA team members do not ‘were not subcontractors because each member of the team has a contractual link with the GSA.

Some unsuccessful bidders, who were CTA team members who won BPA awards but failed to obtain a BPA as a team leader, protested the GSA awards. Following the protests, the defendants-interveners requested that these protests be dismissed for lack of standing. Defendants-interveners argued that the protestors’ status as successful CTA team members precluded them from having the right to protest as an unsuccessful team leader.

The COFC disagreed. First, the Court rejected the defendants-interveners argument that beneficiaries can never have standing to contest an offer, noting that the Court’s decision in National Air Cargo Group, Inc. v. United States, 126 Fed. Cl. 281, 295 (2016), has expressly ruled that “the status of contractor does not in itself deprive this court of its competence in the matter of contesting bids”. Second, the Court rejected the argument that the Court had no jurisdiction over cases challenging the award of a contract by a protester, distinguishing these cases because they arose largely in the prior context. at the award and disputed the market conditions. Finally, the Court rejected the argument that the demonstrators were not “interested parties” with standing to protest because of their BPA awards as members of the CTA team. The court explained that the protesters had a “vested economic interest” in challenging their rejection as CTA team leaders because of the “significant differences” between CTA team leaders and CTA team members, including including the right of CTA team leaders to add or remove the CTA team. Members. The Court also noted that the defendants-interveners’ decisions to defend their awards as CTA team leaders, when they were also selected as CTA team members under a third BPA , undermined their stakeholder argument. The court found that it was difficult to find that the defendants-interveners had a sufficient interest in defending their awards as CTA team leaders, but the protesters did not have sufficient reason to claim the leader awards. CTA team.

Although the court found that the protesters had standing, the court ultimately dismissed the preliminary injunction motions, finding that the protesters had not established a likelihood of success on the merits.

Take away food

This case is a crash course on the differences between GSA CTAs – in which the team leader and team members serve as co-principals with a contractual link to the government – and regular team agreements, which are either a main contractor-subcontractor relationship, or a joint-venture or partnership relationship. Normally, team members (such as contractors and individual members of the joint venture) do not have standing to protest because they would not have a contractual relationship with the government, but this is not not the case with the CTA of the GSA.

Since the Court relied, in part, on the National Air Freight decision to justify this result, this decision also raises the question of whether GAO would have decided this case differently. Before the COFC makes its decision on National Air Freight, the GAO had in fact come to the opposite conclusion, holding that when the tender contemplates multiple auctions, an existing contract winner is not an interested party to challenge the agency’s decision to award another contract. Thus, this decision is also remarkable because it may reveal another split between the COFC law and the GAO law.

[i] Deloitte Consulting, LLP, B-419508; B-419508.2 April 15, 2021.

[ii] Harmonia Holdings Group, LLC v. United States, No. 21-836C (Fed. Cl., March 19, 2021; reprinted April 5, 2021).

[iii] Sirius Federal, LLC (f / k / a Force 3, LLC), CDW Government LLC, Countertrade Products, Inc. and Blue Tech Inc. v. United States, Nos. 21-1030C, 21-1041C, 21-1043C, 21-1053C (Fed. Cl., March 29, 2021; reprinted April 14, 2021).

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