Late last year, on December 20, 2021, the Government Accountability Office (GAO), sustained a protest in the Matter of Insight Technology Solutions, Inc. B-420133.2, B-420133.3, B-420133.4 when it found that the Department of Homeland Security, U.S. Immigration and Customs Enforcement (Agency) unreasonably and disparately evaluated the Awardee’s proposal to provide information technology (IT) support services for the Agency’s student and exchange visitor program (SEVP). This decision is a stark reminder that exclusion of an offeror from a competition is warranted where an offeror has made a material misrepresentation in its proposal and where an agency’s reliance on that offeror’s misrepresentation had a material effect on the evaluation results.
On April 28, 2021, the Agency issued a fair opportunity proposal request (FOPR) to firms holding contracts under the National Institutes of Health’s chief information officer-solutions and partners 3 (CIO-SP3) small business government-wide acquisition contract (GWAC). The FOPR informed offerors that the Agency intended to issue a task order on a best-value tradeoff basis to provide Student and Exchange Visitor Information System IT services. The FOPR was structured as two-phase procurement: phase I required interested firms to affirmatively respond that they wished to participate in phase II, and phase II required offerors to provide a written response to the FOPR and a video presentation. The FOPR provided that the Agency would evaluate proposals based on the certifications factor and the experience factor. Following the evaluation, the Agency would conduct a down-select to up to four proposals that would be considered for award. After the down-select, the FOPR provided that the Agency would evaluate the remaining proposals in light of three evaluation factors: technical approach, management approach, and price. The FOPR also provided that the Agency did not intend to conduct discussions with any offerors.
Importantly, the Agency set forth the minimum qualifications for key personnel in the FOPR and specifically required the proposed project operations manager (PPOM) to have a minimum of five (5) years of experience in managing projects, with a focus on business process and re-engineering projects. Additionally, even though the FOPR did not require offerors to submit key personnel resumes, it did require offerors to clearly identify qualifications and to identify any unique qualifications or experience proposed that exceed the minimum qualifications.
In response to the FOPR, the Agency received seven proposals. After its initial evaluation, the Agency selected four offerors to proceed to phase II, including the Awardee and the Protestor. The Agency conducted its Phase II evaluation of proposals, and when the Source Selection Authority (SSA) discussed the management approach of the offerors in the tradeoff memorandum, the SSA specifically noted that the offeror determined to be the best value and chosen for award proposed “personnel with significantly more experience than the minimum requirements.” The SSA in the tradeoff memorandum did not discuss the experience of the Protestor’s proposed key personnel in its tradeoff analysis.
On September 2, 2021, the Agency transmitted notice to the Protestor that it was not the successful offeror. The Protestor timely requested a debriefing, which was provided, and then it timely protested the award before the GAO.
The Protestor asserted that the award was improper because Awardee misrepresented the relevant experience of its PPOM. Specifically, the Protestor argued that the Awardee’s proposal misrepresented that its PPOM had nine years relevant experience managing projects, with a focus on business process and re engineering projects. Protestor argued that the PPOM did not have the nine years of experience claimed, nor did the PPOM even meet the FOPR’s minimum requirement for five years of experience. The Protestor complained that, because the evaluation both of Awardee’s technical acceptability and the benefits provided by the PPOM’s experience were based in significant part on the misrepresentation that the PPOM had nine years of experience, the Agency’s evaluation was flawed and did not provide a reasonable basis for making award to the Awardee.
The Protestor also complained that the proposals were evaluated disparately under the management approach factor because the Awardee was assessed a “raises-confidence” observation for its approach to “back-fill” vacancies while Protestor was not assessed the same “raises-confidence” observation, despite proposing a similar approach. Specifically, the Protestor argued that, similar to the Awardee, it had proposed to cross-train all of its staff so that they would be ready to cover any vacancies while they were being filled; despite proposing this approach, the Protestor was not credited with a similar observation by the Agency.
The GAO sustained the protest on both grounds. Specifically, the GAO found that the Awardee’s proposal included a material misrepresentation, and that the Agency disparately evaluated the management approach factor despite similar approaches for “back-fill” vacancies.
In its decision, the GAO concluded the Awardee’s assertion that its PPOM had nine years of experience managing projects was a misrepresentation. The GAO relied on information contained in the Agency Record which conclusively indicated that the PPOM had far less experience than the nine years claimed. The GAO found that this misrepresentation was material because the Agency relied upon when it determined that the Awardee’s management approach met and exceeded the requirements. According to the GAO, this reliance had a significant impact on the evaluation and ultimate award to Awardee. The GAO concluded that the Agency’s actions prejudiced the Protestor because the Protestor had the lowest-priced proposal and would have had a substantial chance of receiving the award had the Awardee’s proposal been accurate with respect to the experience level of its PPOM.
With respect to the disparate evaluation allegation, the GAO noted that the Awardee and the Protestor both proposed under the Management Factor similar approaches to “back-fill” vacancies; however, the Awardee alone was assessed a “raises-confidence” observation by the Agency while the Protestor was not. The GAO noted the long standing requirement that Agencies treat all offerors equally and evaluate proposals evenhandedly, and determined that the Agency erred in its evaluation because the offerors’ approaches were substantially indistinguishable and that the differences in the ratings assigned by the Agency did not stem from differences between the proposals and were not supportable based upon the record.
Ultimately, as stated, the GAO sustained both protest grounds and recommended that the Agency terminate Awardee’s task order, exclude the Awardee from the competition, reevaluate the remaining proposals’ management approaches, and make a new source selection decision.
This decision is an important reminder that material misrepresentations in a proposal may be a basis for disqualifying a proposal and canceling a contract award. In instances where source selection teams are required by the solicitation terms to evaluate the qualifications of key personnel, offerors must affirmatively demonstrate that their key personnel meet the qualifications required or their proposal may be deemed deficient. Unsuccessful offerors who have reason to question the qualification representations of other bidders should consult with counsel and avail themselves of the protest process if they believe that a competitor has mad misrepresentations in its proposal upon which the government has relied. By doing so, they will ensure that the source selection teams have not made a fatal error that has tainted the award decision and resulted in an unfair result.