VariQ Corporation

Decision

Matter of:  VariQ Corporation

File:  B-414650.11; B-414650.15

Date:  May 30, 2018

DIGEST

1.  Protest challenging agency’s evaluation of an individual proposed by the awardee for a key personnel position is sustained where the contemporaneous record does not demonstrate that the individual met the qualification requirement.

2.  Protest challenging agency’s past performance evaluation is sustained where the agency relied on incorrect past performance questionnaire ratings in evaluating the protester’s quotation.

3.  Protest challenging the source selection official’s finding that two of the awardee’s strengths were of significant program benefit is sustained where the agency failed to explain why it did not find similar strengths proposed by the protester also to be of significant benefit to the agency.

VariQ Corporation, a small business located in Rockville, Maryland, protests the issuance of a task order to Inserso Corporation, a small business located in Vienna, Virginia, under request for quotations (RFQ) No. HSCETC-17-Q-00010, issued by the Department of Homeland Security (DHS) for information technology operations support services (ITOSS).  The protester argues that the agency unreasonably ignored the awardee’s failure to meet a key personnel qualification requirement, unreasonably evaluated VariQ’s past performance, unreasonably and unequally evaluated Inserso’s and VariQ’s management and technical approaches, and conducted a flawed best-value tradeoff determination.

We sustain the protest.

BACKGROUND

On March 31, 2017, DHS issued the RFQ, which consolidated seven separate ITOSS task orders into one task order under DHS’s Enterprise Acquisition Gateway for Leading Edge Solutions (EAGLE) II indefinite-delivery, indefinite-quantity (IDIQ) multiple-award contract vehicle.  The effort solicited includes the provision of a service desk, information technology (IT) field operations, cabling, video teleconferencing, hardware/maintenance, deployment, and financial/travel system support services, all in support of the U.S. Immigration and Customs Enforcement (ICE) Office of the Chief Information Officer (OCIO) Operations Division.

The RFQ anticipated that the resulting task order would be a hybrid fixed-price, time-and-materials, and labor-hour task order with a 12-month base period and three 12-month option periods.  RFQ at 1.[1]  The solicitation called for the evaluation of four factors, in descending order of importance:  management approach, technical approach, past performance, and price.  Id. at 10.  The non-price factors, when combined, were significantly more important than price.  Id.

Under the management approach factor, the RFQ contemplated the evaluation of the degree to which each vendor’s management approach reflected “an effective, efficient, feasible, and practical level of understanding of the operating environment and management methods for accomplishing the tasks and deliverables of the [performance work statement (PWS)], with minimal risk, and innovative and cost effective ideas.”  Id. at 11.  The RFQ also required vendors to provide resumes and letters of intent for six key personnel positions, and required such resumes to “demonstrate that the individuals possess the education, expertise, abilities, and all stated experience and other relevant technical expertise necessary to successfully perform this effort.”  Id. at 6.  The solicitation warned that if all key personnel qualification requirements were not met, “it may render a quotation unacceptable and the [vendor] ineligible for the [t]ask [o]rder award.”  Id. at 2.  Likewise, the RFQ advised vendors that the agency would “reject any quote that is evaluated to be not compliant with all the Solicitation requirements.”  Id. at 9.

For the technical approach factor, the RFQ contemplated the evaluation of:  (1) the extent to which each vendor’s quotation demonstrated the knowledge, skill, and ability to fulfill relevant PWS requirements, (2) the extent to which the quotation demonstrated an understanding of IT operations challenges and convincingly justified how the vendor’s approach would solve such challenges, and (3) the quotation’s recommendations for improvements in knowledge management, remote support, and user self-help.  Id. at 13.

For past performance, the RFQ contemplated the evaluation of the breadth and depth of each vendor’s relevant experience on projects of similar size, scope, and complexity.  Id. at 14.  The agency stated that the past performance evaluation would only examine contract efforts from the last three years that have been performed by the vendor, its subcontractor, or a combination of both.  Id.

On May 8, the agency received a total of 11 quotations from interested vendors, including quotations from Inserso and VariQ.  On September 29, following discussions and the submission of revised quotations, DHS issued a task order for the ITOSS requirement to Inserso.  Following the issuance of the task order, our Office received protests from several vendors.  DHS subsequently agreed to take corrective action in response to these protests.  On November 6, VariQ filed a protest with our Office of the agency’s planned corrective action.  Our Office dismissed that protest as academic after the agency announced it would revise its planned corrective action to conduct another round of discussions and permit vendors to submit revised quotations. 

Following the submission of final quotations from 10 vendors,[2] the agency evaluated the quotations of Inserso and VariQ as follows:

	Inserso	VariQ
Management Approach	Excellent	Excellent
Strengths/Weaknesses	Strengths=21 Weaknesses=0	Strengths=27 Weaknesses=0
Technical Approach	Excellent	Excellent
Strengths/Weaknesses	Strengths=10 Weaknesses=0	Strengths=11 Weaknesses=0
Past Performance	Substantial Confidence	Satisfactory Confidence
Total Price	$192,261,426	$191,489,321

AR, Tab 321, Consensus Technical Evaluation Team (TET) Report, at 1; AR, Tab 333, Source Selection Decision Memorandum (SSDM), at 1. 

On January 31, 2018, the source selection authority (SSA) conducted a best-value tradeoff between Inserso and VariQ, among other vendors.  The SSA concluded that, although Inserso received fewer strengths than VariQ, its quotation was superior under both the management approach and the technical approach evaluation factors.  See AR, Tab 333, SSDM, at 6-8.  The SSA based this conclusion on her finding that Inserso’s quotation provided the agency with more “substantial strengths,” i.e., strengths that the SSA concluded would provide the agency with substantial program benefit.  Id.  Ultimately, on the basis of these substantial strengths, the SSA concluded that Inserso’s quotation provided the best value to the agency.  Id. at 26.  This protest followed.[3]

DISCUSSION

The protester argues that the agency improperly ignored the fact that one of Inserso’s proposed key personnel did not meet the PWS requirements.  The protester additionally asserts that DHS erred in its evaluation of one of VariQ’s past performance references.  VariQ also argues that the agency unreasonably and disparately evaluated quotations under the management and technical approach factors.  Last, the protester contends that the agency’s best-value determination was flawed and inadequately documented.[4]

Key Personnel Evaluation

The protester challenges the agency’s evaluation of Inserso’s proposed Active Directory and Exchange (ADEX) Team Lead, one of the key personnel positions identified by the solicitation.  In particular, the protester asserts that Inserso’s quotation does not demonstrate compliance with a PWS requirement that the ADEX Team Lead have a deep understanding of High Availability (HA) for Microsoft Exchange, including local continuous replication (LCR), cluster continuous replication (CCR), and database availability group (DAG).  See AR, Tab 66, ITOSS Key Personnel Requirements, at 2.  LCR, CCR, and DAG are different strategies for replicating databases in order to create database redundancy and generate highly available Microsoft Exchange environments, i.e., an Exchange environment that provides service availability, data availability, and automatic recovery from failures that affect the service or data.  Supplemental Protest at 3 n.3; see also Understanding High Availability and Site Resilience, available at https://technet.microsoft.com/en-us/library/dd638137(v=exchg.150).aspx (last visited May 24, 2018). 

Here, as previously noted, the RFQ required vendors to provide resumes that demonstrated that proposed key personnel possessed the “education, expertise, abilities, and all stated experience and other relevant technical expertise necessary to successfully perform this effort.”  RFQ at 6.  Further, the solicitation warned vendors that the agency would reject any quotation that was evaluated as not compliant with all of the solicitation requirements.  Id. at 9.  The resume for Inserso’s proposed ADEX Team Lead, however, did not mention any experience with, or understanding of, HA or of any of the database replication strategies sought by the PWS.  See AR, Tab 287, Inserso Quotation Vol. I, at 49.  Instead, the resume contained only a cursory statement that the proposed individual had supervised a quality assurance (QA) environment, which included Microsoft Exchange, while working as a “QA Lead” for an Army contractor.  Id.   

In response to this argument, the agency contends that the TET reasonably determined that Inserso’s proposed ADEX Team Lead met the applicable qualification requirement based on the personal knowledge of one of the members of the TET.  In support of this assertion, DHS provided a declaration from a TET member that “previously worked for the Department of the Army Europe and who supported the Army’s Exchange environment.”  Memorandum of Law (MOL) at 11.  The TET member stated that, based on his knowledge of the Army’s “QA team,” he knew that the “QA team was responsible for testing all configurations before they went into production” and thus “had to have a deep understanding of Exchange and all its interworking parts.”  TET Member Statement at 2.  According to the TET member, the TET therefore concluded that the proposed ADEX Team Lead’s “experience with the Army supervising the QA environment including Microsoft Exchange met the requirement because the work the QA team performs requires a deep understanding of the High Availability for Exchange.”  Id.  Additionally, the TET member noted that the individual “supervised the QA environment, which indicates he is a lead and would have the most knowledge.”  Id.  The agency therefore contends that, based on the TET member’s knowledge, the TET reasonably determined that Inserso’s proposed ADEX Team Lead met the applicable qualification requirement.  See id.; see also MOL at 11.

In reviewing protests of an agency’s evaluation and source selection decision, our Office will not reevaluate quotations; rather, we review the record to determine whether the evaluation and source selection decision are reasonable and consistent with the solicitation’s evaluation criteria, and applicable procurement laws and regulations.  Ridoc Enter., Inc., B-292962.4, July 6, 2004, 2004 CPD ¶ 169 at 2-3.  While we will not substitute our judgment for that of the agency, we will sustain a protest where the agency’s conclusions are inconsistent with the solicitation’s evaluation criteria, undocumented, or not reasonably based.  Deloitte Consulting, LLP, B-412125.2, B-412125.3, Apr. 15, 2016, 2016 CPD ¶ 119 at 12.

Here, the evaluation record does not contain sufficient information to establish that the agency reasonably credited Inserso’s quotation for meeting the applicable PWS requirement.  As an initial matter, we note that Inserso’s quotation does not contain any information specifically addressing its proposed ADEX Team Lead’s “[d]eep understanding [of] HA for Exchange, including LCR, CCR and DAG.”  AR, Tab 66, ITOSS Key Personnel Requirements, at 2.  Instead, Inserso’s quotation only states that its proposed ADEX Team Lead supervised a QA environment, which included Microsoft Exchange.  See AR, Tab 287, Inserso Quotation Vol. I, at 49.  This is a significant omission, because a QA environment that included Microsoft Exchange is not necessarily an Exchange environment configured for high availability that includes the specific database replication features sought by the PWS.  See Supplemental Protest at 4.  Moreover, even if the environment did include these features, it is not clear from this summary description that the referenced supervisory role required, or imparted, a deep understanding of such features.

Furthermore, the TET member’s post-protest statement does not adequately fill in the information missing from Inserso’s quotation.  The statement contains no indication that the TET member had personal knowledge of the ADEX Team Lead’s experience with, or understanding of, the Exchange environment.  The statement also fails to describe the specific “QA team” that is being discussed, i.e., where that team fits within the Army’s internal organizational structure, and whether that team is the same team, with the same personnel and job functions, as the one that Inserso’s proposed ADEX Team Lead supervised.  In addition, the statement does not mention whether the TET member is familiar with the work performed by the Army contractor for which the proposed ADEX Team Lead worked.

This missing information is significant because the TET member makes largely unsupported statements about the proposed ADEX Team Lead’s experience and knowledge, e.g., that “the work the QA team performs requires a deep understanding of the High Availability for Exchange” and that the  “lead . . . would have the most knowledge.”  TET Member Statement at 2.  Based on this record, we are unable to conclude that the TET member’s statements amount to anything beyond educated guesswork. 

Last, but significantly, we note that there is no evidence in the record to indicate that the TET contemporaneously examined these issues.  In this regard, the agency has not provided any contemporaneous documentation of such consideration, and the TET member’s statement does not clearly state whether the TET examined this issue contemporaneously.  See id.  In sum, the agency has failed to demonstrate that its evaluation of Inserso’s proposed ADEX Team Lead was reasonable. 

The agency further argues that even if Inserso’s proposed ADEX lead did not meet the relevant qualification requirement, the TET’s evaluation finding “merely waived the requirement,” and VariQ cannot establish that it suffered prejudice as a result of such a waiver.  MOL at 11-12.  In this regard, DHS argues that “even if ICE waived the requirement that the ADEX Team Lead have a deep understanding of High Availability for Exchange, which ICE did not,” VariQ has failed to demonstrate that it would have altered its quotation.  Id. at 12. 

We find this argument unavailing.  An agency may waive compliance with a material solicitation requirement in awarding a contract only if the award will meet the agency’s actual needs without prejudice to other offerors.  Technology & Telecomms. Consultants, Inc., B-413301, B-413301.2, Sept. 28, 2016, 2016 CPD ¶ 276 at 12.  In other words, an agency may waive a material requirement only where it concludes that the requirement is unnecessary to meet the agency’s actual needs.  Here, the agency has asserted that it did not waive the requirement, and has not asserted that the qualification requirement in question was unnecessary to meet the agency’s actual needs.  In sum, we are not persuaded that the agency effectively waived the requirement.  Accordingly, we sustain this protest ground. 

Past Performance Evaluation

The protester challenges an error appearing within DHS’s evaluation of VariQ’s past performance.  In this regard, the past performance evaluation team (PPET) report incorrectly stated that VariQ received “good” past performance questionnaire (PPQ) ratings for one of VariQ’s contract references, a contract with the United States Citizenship and Immigration Services for operations and maintenance support to that agency’s verification information system (VIS).  AR, Tab 321, Consensus TET Report, at 55.  Based on these “good” ratings, the PPET assigned a satisfactory confidence rating to the contract reference.  Id.  In fact, however, VariQ received “outstanding” PPQ ratings for the VIS contract, a fact that was noted in the PPET report one page earlier.  Id. at 54. 

The agency contends that the reference to the “good” PPQ ratings was a “typographical error,” which was caused because an old set of PPQ ratings received for the same contract was “not properly updated in the final evaluation document” to reflect new PPQ ratings that had been received.  MOL at 36.  DHS asserts that, notwithstanding this error, the PPET was aware of the updated PPQ ratings and fully evaluated VariQ’s performance based on those ratings.  Id.  The agency reiterated this assertion in a post-protest statement provided by the PPET Chair, which represented that “[b]ased on the updated PPQ, the PPET determined that the contract reference would still be rated Satisfactory Confidence.”  PPET Chair Statement at 4.

In reviewing an agency’s past performance evaluation, we will question an agency’s evaluation conclusions where they are unreasonable or undocumented.  Logistics Mgmt. Int’l, Inc., et al., B-411015.4 et al., Nov. 20, 2015, 2015 CPD ¶ 356 at 8.  Additionally, we accord much greater weight to contemporaneous source selection materials than to representations made in response to protest contentions.  Celta Servs., Inc., supra, at 9.  Further, we give little weight to post-hoc statements that are inconsistent with the contemporaneous record.  Caddell Constr. Co., Inc., B-411005.1, B-411005.2, Apr. 20, 2015, 2015 CPD ¶ 132 at 11.

Based on our review of the contemporaneous record, we conclude that the above error reflects an evaluation mistake that broadly affected the agency’s past performance evaluation and source selection decision, rather than being a minor typographical error.  In this regard, we note that the discussion of the incorrect PPQ ratings appeared in the “finding” section of the PPET report, which is the only section of the report that explains the agency’s basis for assigning the VIS contract a satisfactory confidence rating.  AR, Tab 321, Consensus TET Report, at 55.  In that section, the report notes that “VariQ received ‘Good’ ratings in Quality of Service, Timeliness of Performance, and Business Relations,” then writes, in the next sentence, “VariQ received partial in scope and smaller in size and complexity – rating for this contract past performance review – ‘Satisfactory Confidence.’”  Id.  Accordingly, while the PPET chair contends, in his post-protest declaration, that the agency based its satisfactory confidence rating on the updated PPQ, we find this representation to be inconsistent with the contemporaneous record.  The PPET report expressly states that the satisfactory confidence rating assigned to the VIS contract was based on the “good” PPQ ratings.  See id. 

Additionally, we note that the SSA expressly discussed the VIS contract as having received “good” PPQ ratings in the best-value tradeoff determination.  AR, Tab 333, SSDM, at 9 (quoting the above PPET report finding).  While the SSA provided a post-protest declaration representing that this error did not affect the best-value tradeoff decision, we note that this representation appears to be based, in part, on the PPET Chair’s post-hoc representation that this error did not affect the PPET’s ratings.[5]

Accordingly, it is unclear from the contemporaneous record that the PPET would have assigned the protester’s VIS reference a confidence rating of satisfactory if the PPET had relied on the correct PPQ scores.  In this regard, we note, for example, that the PPET contemporaneously concluded that an Inserso reference warranted a substantial confidence rating, where that reference received outstanding PPQ ratings, despite being found to be only partially similar in size, scope, and complexity.  See AR, Tab 367, TET Chair Statement Attach. 1, Corrected PPET Report, at 7-8.[6]  Additionally, since VariQ’s other two contract references were both assigned substantial confidence ratings, it appears likely an increase in its rating for the VIS contract would have increased VariQ’s overall past performance rating.  In sum, we conclude that the agency’s reliance on the incorrect PPQ ratings contributed to the agency’s overall rating in this area, and sustain VariQ’s challenge of the agency’s evaluation of the protester’s past performance.  

Assignment of “Substantial Strengths”

The protester argues that the SSA unreasonably found that certain of Inserso’s strengths were “substantial strengths,” i.e., discriminators based on the significant program benefit resulting from these strengths.  AR, Tab 333, SSDM, 2-8.  The greater number of substantial strengths in the awardee’s quotation was the basis for the agency’s decision to issue the task order to Inserso notwithstanding VariQ’s lower price and greater number of strengths under both the management approach and technical approach evaluation factors.  See id. at 10.  The protester challenges the SSA’s determination that certain of these strengths were substantial, arguing that the SSA failed to make the same determination with respect to similar strengths found in VariQ’s quotation.  For a number of these substantial strengths, the agency has provided reasonable explanations demonstrating that the disparate treatment was based on meaningful differences, as found by the evaluators and the SSA, between the two quotations.  Discussed below are those areas where we agree that the agency has not adequately documented its basis for treating Inserso’s and VariQ’s quotations unequally.

It is axiomatic that agencies are required to evaluate quotations on a common basis and in accordance with the terms of the solicitation; agencies may not properly engage in disparate treatment of vendors in the evaluation of quotations.  See Fluor Fed. Solutions, LLC, B-410486.9, Jan. 18, 2017, 2017 CPD ¶ 334 at 6.  Additionally, in order for our Office to review the reasonableness of an agency’s evaluation judgment and source selection decision, the agency must have adequate documentation to support its judgment.  Johnson Controls World Servs., Inc., B-289942, B-289942.2, May 24, 2002, 2002 CPD ¶ 88 at 6.  An agency that fails to adequately document its source selection decision bears the risk that our Office may be unable to determine that the decision was reasonable.  Id.

Here, the record fails to show that the SSA had a reasonable basis for finding that two Inserso strengths were of significant program benefit, while not finding that two similar strengths in the protester’s quotation, as identified by the TET, were not similarly of significant program benefit.[7]

The first such strength was a strength assigned to Inserso’s quotation for providing shift flexibility, specifically [DELETED].  See AR, Tab 321, Consensus TET Report, at 6.  The SSA found that this strength provided a significant program benefit, because [DELETED] this approach will improve flexibility and better align resources to meet the Government’s needs.”  AR, Tab 333, SSDM, at 3. 

The TET assigned VariQ a similar strength for its staffing plan, which the agency found would [DELETED] to ensure proper staffing” and would ensure that VariQ has “the flexibility to meet expected and unexpected surges to include [DELETED].”  AR, Tab 321, Consensus TET Report, at 38. 

Despite the TET recognizing similar benefits in Inserso’s and VariQ’s approaches to shift flexibility, the SSA did not consider VariQ’s approach to merit a substantial strength.  The agency has not provided a meaningful explanation, either in the contemporaneous record, or in response to this protest, for this unequal treatment.  The record thus fails to establish that the agency acted reasonably in differentiating between the two strengths.  

Instead of providing an explanation, the agency argues, in its legal memorandum, that it did not treat these two strengths unequally, because Inserso’s shift flexibility strength was only mentioned in the SSDM’s discussion of Inserso’s quotation, and was not discussed in the tradeoff section.  We find no merit to this argument.  Regardless of whether the Inserso strength was discussed in the tradeoff section or not, it was still identified by the SSA as a discriminator as evidenced by its designation as a “substantial strength.”  AR, Tab 333, SSDM, at 3. 

Similarly, the SSA recognized a substantial strength for Inserso’s approach for maintaining staffing in emergency situations, specifically [DELETED].[8]  See AR, Tab 333, SSDM, at 4.  The SSDM noted that this approach would “benefit the Government during emergency situations in which additional staff, [DELETED], are needed.”  Id.

With respect to VariQ, the TET recognized a similar strength partially stemming from VariQ’s proposed use of a [DELETED] which was a part of VariQ’s surge support approach.  AR, Tab 290, VariQ Quotation Vol. I, at 1-27; see also AR, Tab 321, Consensus TET Report, at 37.[9]  Despite the similarity of these strengths, the SSDM does not contain a meaningful explanation for why VariQ’s strength also was not considered a substantial strength.

While an agency is not obligated to extensively document every consideration made in its tradeoff decision, it is required to adequately explain and document the basis for its source selection determination.  See ManTech Advanced Sys. Int’l, Inc., B-415497, Jan. 18, 2018, 2018 CPD ¶ 60 at 5-6.  Here, the agency has not provided a meaningful explanation for its unequal treatment of the above strengths--nor do we find one in the contemporaneous record.  Accordingly, we conclude that the agency has not adequately documented its source selection decision with respect to these issues and sustain this protest ground. 

PREJUDICE

Our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions, that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award.  Raytheon Co., B-409651, B-409651.2, July 9, 2014, 2014 CPD ¶ 207 at 17.

Here, but for the above discussed errors, the agency might have (1) rated the awardee’s management approach lower, (2) rated the protester’s management approach and past performance higher, and (3) found additional substantial strengths in VariQ’s quotation.  These changes might have reduced or eliminated the overall gap between Inserso’s quotation and the protester’s.  In such circumstances, we resolve any doubts regarding prejudice in favor of the protester since a reasonable possibility of prejudice is a sufficient basis for sustaining a protest.  See Kellogg, Brown & Root Servs., Inc.--Recon., B-309752.8, Dec. 20, 2007, 2008 CPD ¶ 84 at 5.  Accordingly, we conclude that VariQ has established the requisite competitive prejudice to prevail in its bid protest.

RECOMMENDATION

We recommend that the agency reevaluate quotations in a manner consistent with the terms of the solicitation and our decision (or, alternatively, reopen discussions and request revised quotations before reevaluating), and make a new source selection decision based on that reevaluation.  We also recommend that the agency reimburse VariQ its reasonable costs of filing and pursuing its protest, including reasonable attorneys’ fees.  4 C.F.R. § 21.8(d)(1).  The protester’s certified claim for costs, detailing the time spent and the cost incurred, must be submitted to the agency within 60 days after receipt of this decision.  4 C.F.R. § 21.8(f).

The protest is sustained.

Thomas H. Armstrong
General Counsel

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