Platinum Business Services, LLC

Decision

Matter of:  Platinum Business Services, LLC

File:  B-413947

Date:  December 23, 2016

DIGEST

1.  Protest alleging that the agency did not give adequate consideration to a potential organizational conflict of interest is denied where the protester fails to present hard facts indicating the existence of a conflict.

2.  Protest that the ordering contracting officer for a task order issued under a Federal Supply Schedule contract failed to verify the awardee’s small business status is dismissed where the Small Business Administration, in ruling on a size status protest, found that the solicitation did not require recertification of size status at the order level.

Platinum Business Services, LLC, a service‑disabled veteran‑owned small business (SDVOSB) located in Laurel, Maryland, protests the issuance of a task order to Redhorse Corporation of San Diego, California, under request for quotations (RFQ) No. QTA0016ACB3007, issued by the General Services Administration (GSA) for acquisition management and information technology (IT) support services.  Platinum contends that GSA did not investigate whether Redhorse had a potentially disqualifying organizational conflict of interest (OCI) and that the agency failed to verify the awardee’s small business size status.  The protester also challenges the evaluation of Platinum’s technical quotation.

We deny the protest in part and dismiss the protest in part.

BACKGROUND

The RFQ, which was set aside for SDVOSB concerns, was issued on June 13, 2016, pursuant to Federal Acquisition Regulation (FAR) subpart 8.4 to vendors holding GSA Federal Supply Schedule (FSS) contracts under special item numbers 874 6 (Acquisition Management Support) and C132 51 (IT professional services).  RFQ, amend. 1, at 4; §§ 9.1, 13.2, 13.4.  The solicitation provided for the issuance of a hybrid task order (fixed‑price with labor‑hour tasks) for a base period, 4 options years, and a final option period, based on a best‑value tradeoff among five evaluation factors (listed in descending order of importance):  technical approach, personnel, management approach, past performance, and price.  Id. §§ 2.3, 5.1, 13.0, 13.4.  The RFQ’s statement of work (SOW) requires the vendor to provide transition ordering assistance (TOA) to GSA’s Office of Network Services Program (NSP) and its federal agency customers, as they transition from GSA’s expiring government‑wide telecommunications and network services contracts to the replacement Enterprise Infrastructure Solutions contracts.  See id. §§ 3.1‑3.4.

Offerors were to submit separate technical and price quotations.  Id. § 12.1.  With respect to the technical approach evaluation factor, offerors were to propose a methodology for accomplishing all SOW requirements.  Id. § 12.1.5.  The RFQ stated that the agency would evaluate the offeror’s understanding of the technical requirements and the extent to which the offeror demonstrated a realistic methodology for:  (1) providing technical advice on transitioning to new technologies to improve operational capabilities, future capacity, and modernization; (2) providing timely, accurate, and complete analysis of telecommunications labor, services, equipment, solutions, and their associated price points in the federal market; and (3) minimizing potential problems and risks, including how well the offeror addressed the government‑wide scope, dealing with the diverse needs of agencies, and meeting the aggressive schedule.  See id. § 13.1.  Offerors were advised that any quotation found unacceptable under a non‑price evaluation factor would be found unacceptable overall and not considered for award.  Id. § 13.0.

In their price quotations, offerors were to submit, among other things, a copy of their current active registration in the System for Award Management (SAM).  Id. § 12.1.2.d.  The RFQ incorporated a number of standard FAR clauses in this regard, including 52.204‑8, which requires an offeror to verify that its annual SAM representations and certifications are current, accurate, complete, and applicable to the solicitation, including, as relevant here, the small business size standard for the specified NAICS code.[1]  Id. § 9.1; FAR § 52.204‑8, Annual Representations and Certifications (Apr. 2016).  The RFQ stated that representations and certifications would be reviewed before award.  RFQ, amend. 1, § 10.2.

GSA received quotations from three FSS vendors by the July 5 deadline, including from Platinum and Redhorse, which were evaluated by separate technical and price evaluators.  See Agency Report (AR), Exh. 6, Source Selection Decision (SSD), at 6.[2]  Platinum’s quotation was rated unacceptable under the technical approach evaluation factor, because the technical evaluation panel (TEP) found that Platinum did not submit a well written and organized quotation, which demonstrated a very high risk of unsuccessful performance.[3]  AR, Exh. 5, TEP Consensus Rep., at 4.  Therefore, consistent with the terms of the solicitation, Platinum received an unacceptable rating for its overall technical quotation.  Id.

The contracting officer (who was the source selection authority for the procurement) reviewed the evaluators’ findings and conducted a cost/technical tradeoff.  See AR, Exh. 6, SSD, at 6‑8.  The contracting officer determined that Redhorse offered the best value to the government and on September 29, the agency issued the task order to Redhorse for $92,961,454.  Id.; Contracting Officer’s Statement (COS) at 1.  This protest followed.

DISCUSSION

Platinum contends that the contracting officer did not investigate whether Redhorse had a potentially disqualifying OCI, and that she failed to verify Redhorse’s representations regarding its small business size status.  The protester also challenges the evaluation of Platinum’s technical approach.  Although our decision does not specifically address each of the protester’s arguments, we have considered all of its assertions and find none furnishes a basis for sustaining its protest.[4]

Organizational Conflict of Interest

Platinum alleges that Redhorse has an actual or potential OCI that should have disqualified the firm from the competition, because Redhorse was issued a task order in 2014 to develop (according to Platinum) the SOW for the instant solicitation and “prepared or provided material to the SOW[.]”[5]  See Protest at 3.  Platinum contends that the 2014 task order “potentially afford[s] Redhorse an opportunity to create biased ground rules in future solicitations[.]”[6]  Id.  Platinum maintains that “[t]hese hard facts would lead a reasonable Contracting Officer to believe that Redhorse’s award [of the 2014 task order] should have barred Redhorse from being awarded” the instant task order.  Id. at 4.

As our Office has explained, a protester must identify hard facts that indicate the existence or potential existence of a conflict; mere inference or suspicion of an actual or potential conflict is not enough.  Science Applications Int’l Corp., B‑406899, Sept. 26, 2012, 2012 CPD ¶ 282 at 8-9.  Here, contrary to Platinum’s belief, it has not identified hard facts to support its OCI allegations; instead, the protester offers little more than inference and suspicion (and inaccurate facts) in support of its allegations.  See, e.g., Valor Constr. Mgmt., LLC, supra, at n.1, citing Turner Constr. Co., Inc. v. United States, 645 F.3d 1377, 1387 (Fed. Cir. 2011). 

Contrary to Platinum’s mistaken assertion, Redhorse was not “tasked with drafting the SOW” for the current solicitation.  See Protest at 3.  GSA states that the SOW was developed entirely by government employees without assistance from Redhorse or any other contractor, and the agency submitted a declaration in this respect from the transition manager for the EIS acquisition.  COS at 1; AR, Exh. 3, EIS Transition Manager’s Declaration (Declaration), at 1‑2.  The manager states that she was the principal author of the SOW, that defining the TOA requirement and drafting its SOW was done by government employees (whom she identified by name), and that Redhorse’s 2014 task order was not used in any way for drafting the SOW or any other task related to the TOA acquisition.  AR, Exh. 3, Declaration, at 1‑2.

Platinum does not dispute GSA’s assertions or its manager’s declaration that Redhorse had no involvement with this acquisition.  See Comments at 2.  Moreover, Platinum does not assert that Redhorse did not comply with the RFQ’s requirement to submit an OCI certification and, if necessary, an OCI mitigation plan.  See Protest; Comments; RFQ, amend. 1, §§ 8.1, 12.1.2e; attach. B, OCI Certification.

Here, Platinum has failed to satisfy the standard required to support an allegation regarding the existence of an OCI, because the protester does not identify hard (or accurate) facts in support of its allegation.  Accordingly, we deny this aspect of its protest.  See DGC Int’l, B‑410364.3, Apr. 22, 2015, 2015 CPD ¶ 136 at 7; ViON Corp.; EMC Corp., B‑409985.4 et al., Apr. 3, 2015, 2015 CPD ¶ 141 at 11‑12 (protest denied where protester does not provide hard facts indicating that IT consulting firm was involved in crafting the performance work statement or any solicitation provisions).[7]

Awardee’s Size Status

Platinum contends that the contracting officer failed to verify Redhorse’s SAM representations regarding its current small business size status, consistent with the solicitation.  Protest at 4.  Platinum argues that by incorporating FAR clause 52.204‑8, and stating that SAM representations and certifications would be reviewed before award, the RFQ specifically required the contracting officer to verify an offeror’s small business size status.  Id.; Comments at 4.  Platinum asserts that if the contracting officer had properly reviewed Redhorse’s SAM registration, she would have learned that the awardee was listed (according to the protester) as other than a small business and was therefore not eligible for award.  See id.

As a preliminary matter, the Small Business Act, 15 U.S.C. § 637(b)(6), gives the Small Business Administration (SBA), not our Office, the conclusive authority to determine matters of small business size status for federal procurements.  4 C.F.R. § 21.5(b)(1); Randolph Eng’g Sunglasses, B‑280270, Aug. 10, 1998, 98-2 CPD ¶ 39 at 3.  As a general rule, our Office will defer to SBA’s judgment in matters such as this, which fall squarely within its responsibility for administering the Small Business Act.  CMS Info. Servs., Inc., B-290541, Aug. 7, 2002, 2002 CPD ¶ 132 at 3 n.6.

Here, even if we were to agree with Platinum that the RFQ required the contracting officer to verify Redhorse’s small business size status, or that the contracting officer had reason to question Redhorse’s size representations, the SBA has already found that offerors were not required to recertify their size status for this task order competition.[8]  Because the SBA has conclusive authority in such matters, Platinum’s challenge to the award on this basis is not for review by our Office, and we dismiss this aspect of the protest accordingly.[9]  4 C.F.R. § 21.5(b)(1); see Software Eng’g Servs. Corp., B‑411739, Oct. 8, 2015, 2015 CPD ¶ 315 at 4‑5 (denying protest that contracting officer failed to verify awardee’s size status where SBA, in dismissing a size status protest as untimely, concluded that the task order solicitation at issue did not require recertification of an offeror’s small business status).

Platinum’s Technical Evaluation

Finally, we dismiss Platinum’s challenge to the evaluation of its technical approach.  See Protest at 4‑5.  GSA, in its agency report, provided a detailed response to Platinum’s challenge to its technical evaluation; however, in its comments on the agency report, Platinum did not address any of GSA’s numerous assertions.  Compare COS at 2‑3 with Comments at 5.  Moreover, despite receiving an unredacted (with respect to the protester’s evaluation) copy of the TEP report and the contracting officer’s SSD, Platinum identifies no aspect of the record that was allegedly inconsistent with the RFQ’s evaluation criteria.[10]

Where, as here, an agency provides a detailed response to a protester’s allegations and the protester fails to rebut or otherwise substantively address the agency’s arguments in its comments, the protester provides us with no basis to conclude that the agency’s position with respect to the issue in question is unreasonable or improper.  See Israel Aircraft Indus., Ltd.--TAMAM Div., B-297691, Mar. 13, 2006, 2006 CPD ¶ 62 at 6-7 (where protester either does not respond to the agency’s position or provides a response that merely references or restates the original allegation without substantively rebutting the agency’s position, we deem the originally-raised allegation abandoned).

In sum, Platinum’s protest reflects little more than disagreement with GSA’s evaluation and source selection decision, which does not establish that the agency acted unreasonably or provide a basis to sustain its protest.  See Citywide Managing Servs. of Port Washington, Inc., B‑281287.12, B-281287.13, Nov. 15, 2000, 2001 CPD ¶ 6 at 10.

The protest is denied in part and dismissed in part.

Susan A. Poling
General Counsel