WorldWide Language Resources, Inc.

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This version has been approved for public release.

Decision

Matter of: WorldWide Language Resources, Inc.

File: B-420900

Date: October 21, 2022

DIGEST

1. Protest challenging the terms of the solicitation as ambiguous or inadequately detailed is denied where the solicitation provides sufficient information to allow offerors to intelligently draft proposals.

2. Protest that the solicitation’s evaluation scheme improperly fails to consider the cost of Defense Base Act insurance in the total evaluated price is denied where the agency reasonably believes that initial costs would not be reflective of true costs over the life of the contract.

3. Protest that the solicitation unreasonably fails to consider offerors’ past performance is denied where agency reasonably exercised its discretion in not examining offerors’ past performance at the task-order level.

WorldWide Language Resources, Inc., of Fayetteville, North Carolina, protests the terms of request for task order proposals (RTOP) No. W911W4-22-R-CENT2, issued by the Department of the Army, for foreign language interpretation, translation, and transcription services. The protester contends the solicitation is ambiguous and inconsistent, does not allow all offerors to compete on an equal basis or otherwise intelligently prepare proposals, impermissibly excludes certain insurance costs in the cost/price evaluation, and unreasonably fails to consider past performance.

We deny the protest.

BACKGROUND

On June 21, 2022, the Army issued the RTOP under the Defense Language Interpretation and Translation Enterprise II (DLITE II) indefinite-delivery, indefinite-quantity (IDIQ) contract, pursuant to the procedures of Federal Acquisition Regulation (FAR) subpart 16.5.[1] Agency Report (AR), Tab 9, RTOP amend. 003 at 1-2, 67; Contracting Officer’s Statement (COS) at 1-3; Memorandum of Law (MOL) at 1. The solicitation contemplates the issuance of a single task order, with labor-hour and cost-reimbursement contract line items, with a 1-year base period of performance and four, 1‑year option periods, for management and linguist support services. RTOP at 3. Specifically, the Army sought contractor support in the areas of language interpretation, translation, and transcription services in the U.S. Central Command’s area of operations, which includes 19 countries. COS at 1.

The solicitation advises that award will be made on best-value tradeoff basis, considering two factors: (1) technical; and (2) cost/price. RTOP at 83. The technical factor has three subfactors: (a) project management; (b) human capital; and (c) transition plan. Id. at 84. Under the project management subfactor, the Army will evaluate an “offeror’s approach and understanding, including risk of unsuccessful performance to management and non-linguist personnel staffing including organizational structure, roles, responsibilities, and lines of communication for supporting linguist, monitoring performance, maintaining quality, managing risk, and interfacing with the Government.” Id. Under the human capital subfactor, an offeror will be evaluated based on its “proposed approach and understanding, including risk of unsuccessful performance, to recruiting, vetting, hiring and retaining qualified linguist staffing[.]” Id. For the third technical subfactor, transition plan, the agency will evaluate an offerors’ approach for a 90-day phase-in period. Id. at 85. Cost/price will be evaluated for reasonableness, completeness, and balanced pricing. Id. at 86.

As a preliminary matter, WorldWide submitted a proposal and filed the instant protest prior to the established due date for submissions. COS at 4. Following the production of the agency report, and after an additional round of briefing, our Office, on October 7, held an outcome prediction alternative dispute resolution (ADR) teleconference call with the parties. See 4 C.F.R. § 21.10(e). During this call, the GAO attorney assigned to the protest advised that the protest would likely be sustained, in part, with respect to a single allegation--that the solicitation did not provide sufficient information to allow offerors to intelligently calculate their labor rates with respect to meal and lodging costs. The GAO attorney further explained that he would likely deny the remainder of WorldWide’s protest allegations.

On October 11, the agency asked our Office to dismiss the protest as academic, based on the agency’s intention to take corrective action. Req. for Dismissal, Oct. 11, 2022. The Army provided that it intends “to issue an amendment to the [solicitation] to provide more detail on performance location regarding which locations provided government lodging and access to dining facilities [and] will allow proposal revisions based on the amendment.” Id. at 1. The protester responded that the agency’s intended corrective action does not render the entire protest academic because “there are other challenges to the sufficiency of the solicitation that are not addressed by the corrective action.” Resp. to Req. for Dismissal, Oct. 12, 2022, at 1.

We dismiss the protest allegation addressed by the agency through its voluntary corrective action--whether the solicitation provides sufficient information to allow offeror’s to intelligently calculate their labor rates with respect to meal and lodging costs‑-as the corrective action renders this protest ground academic. See e.g., Dyna-Air Eng’g Corp., B-278037, Nov. 7, 1997, 97-2 CPD ¶ 132. Notwithstanding the predicted outcome explained by the GAO attorney during the ADR teleconference call, however, WorldWide elected not to withdraw its remaining protest grounds.[2] See Resp. to Req. for Dismissal, Oct. 12, 2022, at 1.

DISCUSSION

The protester raises several allegations challenging the terms of the solicitation. WorldWide contends the RTOP fails to provide relevant information, and contains various ambiguities and inconsistencies, which prevent offerors from intelligently preparing proposals. Protest at 9-16; Comments at 2-12. Additionally, WorldWide argues the solicitation is contrary to law and regulation where it fails to consider Defense Base Act (DBA) insurance costs in the cost/price evaluation. Protest at 16-19; Comments at 12-15. Finally, the protester argues the solicitation unreasonably fails to consider past performance. Protest at 19-20; Comments at 15-17. For the reasons that follow, we find no basis to sustain the protest.[3]

As a general rule, a solicitation must be drafted in a fashion that enables offerors to intelligently prepare their proposals and must be sufficiently free from ambiguity so that offerors may compete on a common basis. Raymond Express Int’l, B-409872.2, Nov. 6, 2014, 2014 CPD ¶ 317 at 9. However, there is no requirement that a competition be based on specifications drafted in such detail as to completely eliminate all risk or remove every uncertainty from the mind of every prospective offeror; to the contrary, an agency may provide for a competition that imposes maximum risks on the contractor and minimum burdens on the agency, provided the solicitation contains sufficient information for offerors to compete intelligently and on equal terms. Phoenix Envtl. Design, Inc., B-411746, Oct. 14, 2015, 2015 CPD ¶ 319 at 3.

The protester first argues the solicitation lacks sufficient information to allow WorldWide to draft its proposal intelligently, with respect to proposing on-site management. Protest at 11; Comments at 4‑6. The solicitation required offerors to “provide on-site management to supervise contractor personnel throughout the period of performance of this task order.” RTOP at 29. Under the project management subfactor, the Army would evaluate an offeror’s management approach and its non-linguist personnel staffing. Id. at 84. In the protester’s view, the RTOP does not provide adequate information, with respect to expected performance locations, for WorldWide to intelligently propose on-site managers. As one example, the protester notes that the awardee may be required to provide as many as 304 linguists in Iraq, yet, the RTOP does not provide any specific information as to where in that country the linguists are likely to be located. Comments at 4. In response, the agency explains that due to the fluid nature of the Army’s requirement, it is not feasible to provide expected performance locations. COS at 4-5. Moreover, the Army provides that the solicitation placed the burden on offerors to determine the appropriate management structure, but did not require offerors to propose where, specifically, managers would be located. MOL at 11. In this regard, the Army asserts the RTOP encourages novel and creative management structures, rather than a single rigid approach. Id. at 11-12.

We do not agree with the protester that the RTOP provides insufficient information for offerors to propose on-site managers. In this regard, the solicitation provides the number of linguists required (per language category) for a given country, and does not mandate that an offeror identify the exact location within each respective country to place its management team. See AR, Tab, 8a, RTOP Tech. Exh., Tech. Summary; RTOP at 29. Indeed, while the protester may be correct in asserting that without information concerning specific performance locations (via either historical information or a forward-looking estimate) it will be “difficult” to know the “best” locations to place its on-site managers (Comments at 4), the information in the RTOP provides, in our view, offerors with a sufficient basis to propose an approach to providing on-site management teams.[4]

Similarly, the record does not demonstrate that offerors are deprived of an opportunity to intelligently prepare their proposals with respect to contractor travel from the Army’s Continental United States Replacement Center (CRC). The RTOP advised that contractors travelling from the United States to deployed areas of operations would embark from the CRC. RTOP at 39. WorldWide contends that a lack of historical data or a schedule of CRC deployments “negatively affects the ability for prospective contractors to accurately draft their transition approaches[.]” Protest at 15. However, the protester does not articulate any rationale for why historical information is necessary for WorldWide to prepare its proposal. Rather, it argues that more information would help it prepare its proposal to “avoid prior pitfalls.” Comments at 10. We have long recognized there is no legal requirement that a solicitation remove every potential uncertainty from each offeror. Phoenix Envtl. Design, Inc., supra at 3. On this record, we find no basis to sustain this protest allegation.[5]

The protester also challenges the cost/price evaluation criteria, and specifically, the agency’s decision not to include DBA insurance costs in assessing an offeror’s total evaluated price.[6] Protest at 16-19; Comments at 12-15; Supp. Comments at 5-6. The RTOP explained that while DBA insurance costs were to be reimbursed by the Army, “for evaluation purposes, this DBA Insurance Amount will not be included in the Total Evaluated Price.” RTOP at 77. The Army explained that it decided to exclude DBA costs from its cost/price evaluation because it believes (a) initial rates were mostly consistent, due to limited competition of providers, and (b) initial DBA rates may fluctuate over time and are uncertain over the life of the contract. COS at 14-15; AR, Tab 13, Agency Email to WorldWide Regarding DBA Costs at 1. WorldWide argues that if the Army includes “DBA rates in its cost evaluation, then it could be more certain that it is considering the true costs to the Government of the competing proposals.” Comments at 15.

Our Office addressed a materially similar allegation raised by the protester in 2016. In WorldWide Language Resources, Inc., supra, we concluded that the Army’s decision to exclude DBA insurance costs from the total evaluated price was reasonable “[g]iven the agency’s uncertainty about the cost of DBA insurance over the life of the contract, and its desire to promote a fair competition[.]” Id. at 6. As was the case in that protest, here, the contracting officer explains that “the Army is uncertain as to the cost of DBA costs over the entire contract and has elected to accept that risk[.]” COS at 15. The protester advances no persuasive challenge to suggest the Army’s decision, in this regard, is unreasonable, but instead, only marshals an alternative evaluation scheme under which, the protester suggests, the Army “could be more certain” that it was considering the true cost to the government.[7] Comments at 14. Such disagreement, without more, provides no basis to sustain the protest. Chenega Fed. Sys., LLC, B‑414478, June 26, 2017, 2017 CPD ¶ 196 at 3; see also Onѐsimus Defense, LLC, B‑411123.3, B-411123.4, July 24, 2015, 2015 CPD ¶ 224 at 5 (agency may eliminate costs from consideration where, due to potentially fluctuating costs, the agency cannot accurately determine what offer will be the least expensive over the life of a contract).

Finally, WorldWide argues that the agency’s decision not to consider past performance as an evaluation factor is unreasonable because two potential offerors were not the original awardees under the DLITE II IDIQ, but instead, acquired firms that held these contracts. Protest at 19-20; Comments at 15-17; Supp. Comments at 6. In this regard, the protester argues the agency abused its discretion by not including past performance as an evaluation factor in light of FAR section 16.505(b)(1)(v)(A)(1), which provides that the contracting officer “should consider . . . past performance on earlier orders under the contract, including quality, timeliness and cost control.” For the reasons that follow, we do not agree with the premise underlying the protester’s argument that the regulation establishes a preference for agencies to include past performance as an evaluation factor in a solicitation for a proposed task or delivery order under a multiple award IDIQ contract.

Pursuant to FAR section 16.505(b)(1)(ii), contracting officers “may exercise broad discretion in developing appropriate order placement procedures.” See also id. (providing that “[t]he contracting officer should keep submission requirements to a minimum”). In light of this broad discretion afforded to the agency, there is simply no requirement that an agency consider past performance as an evaluation factor at the order level. To the extent the protester suggests that FAR section 16.505(b)(1)(v)(A)(1) imposes a presumption (as opposed to a requirement) that the agency will evaluate past performance at the order level, we disagree. Indeed, the FAR section at issue addresses matters that the contracting agency should consider when developing ordering procedures, as opposed to proscribing specific evaluation criteria that should be used at the order level. Specifically, the provision in question states that “[t]he contracting officer should consider the following when developing [fair opportunity ordering] procedures,” and then enumerates a number of considerations including past performance on prior orders. Id. (emphasis added).

Because the FAR section in question does not reasonably support the protester’s argument, we have no basis to question the agency’s exercise of its broad discretion in deciding what factors to evaluate in issuing this task order, which includes its discretion not to evaluate past performance. WorldWide’s mere disagreement and speculation concerning other potential offerors performance history, or its suggestion that “it remains unclear” whether the current IDIQ holders are successors-in-interest of the acquired IDIQ holders, provide no basis to conclude that the Army abused its discretion in failing to consider past performance. Cf. COS at 16 (“[The protester] is inaccurate in alleging that [the named firms] never underwent a past performance evaluation. [The named firms] are current DLITE II task order holders.”).

The protest is denied.

Edda Emmanuelli Perez
General Counsel