Peraton, Inc.

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

Decision

Matter of: Peraton, Inc.

File: B-420919.2; B-420919.3

Date: December 8, 2022

DIGEST

1. Protest that the agency unreasonably evaluated the protester’s proposal is denied where the record shows that the evaluation was consistent with the content of the firm’s proposal, and with the terms of the solicitation.

2. Protest that the agency unreasonably issued a single task order, as opposed to multiple task orders, is denied where the agency’s determination was consistent with the solicitation, and was adequately documented.

3. Protest that the source selection authority failed to exercise her independent judgment is denied where the record shows that, even though she relied on other agency officials, the selection authority performed the tradeoff determination.

4. Protest that the tradeoff determination was unreasonable is denied where the record shows that the selection authority’s comparisons were meaningful and reasonably based on the evaluation judgments.

Peraton, Inc., the incumbent contractor, of Herndon, Virginia, protests the issuance of a task order to Leidos, Inc., of Reston, Virginia, under request for task order proposals (RFTOP) No. 28321322Q00000125, issued by the Social Security Administration (SSA) for program modernization support services. Peraton argues that the SSA unreasonably evaluated proposals, and improperly made the selection decision.

We deny the protest.

BACKGROUND

On March 22, 2022, the SSA issued the RFTOP to procure program modernization support services under the agency’s multiple-award information technology (IT) support services indefinite‑delivery, indefinite‑quantity contract. Agency Report (AR), Tab 2, RFTOP, amend. 2 at 1; Combined Contracting Officer’s Statement and Memorandum of Law (COS/MOL) at 2‑3.[1] Specifically, the selected contractor was to provide a broad range of support services, including: applying industry standard product management frameworks to existing SSA processes; providing organized process training seminars to agency personnel; supporting lifecycle activities for software improvement; data warehousing support; and data evaluation AR, Tab 3, RFTOP, Statement of Work (SOW) at 1.

The RFTOP contemplated the issuance of a hybrid task order contract to be performed over a 3-month base period, five-1-year option periods, and a 6-month extension period. RFTOP, amend. 2 at 7-9; AR, Tab 4, Summary of Award (SOA) at 2-3. The SSA would evaluate proposals in two phases. RFTOP, amend. 2 at 9-10. During the first phase, the agency would evaluate on a pass or fail basis offerors’ identified conflicts of interest, and any applicable proposed mitigation plans. Id. at 10.

During the second phase, the agency would evaluate proposals under relevant experience and price factors, and then conduct a tradeoff determination. RFTOP, amend. 2 at 11. When describing their relevant experience, offerors were instructed to describe at least two, but no more than five, prior contracts where they performed similar requirements in terms of size, duration, and scope. Id. at 6. Further, when describing the scope of their prior performance, offerors were required to address seven different areas of performance including, for example, management of multi‑platform environments, and management of enterprise-level data warehouses. Id.

When submitting their price proposals, offerors were instructed to complete pricing tables. RFTOP, amend. 2 at 8. The pricing tables required offerors to provide labor rates for various labor categories, such as business operations specialists and database engineers. Id. at 18. The RFTOP advised that, when conducting the tradeoff determination, the relevant experience factor would be considered significantly more important than the price factor. Id. at 11.

Only Leidos and Peraton submitted proposals prior to the April 8 close of the solicitation period. AR, Tab 4, SOA at 3. The evaluation produced the following results:

	Relevant Experience	Total Price
Leidos	Extremely Similar	$483,339,521
Peraton	Extremely Similar	$596,085,545

 

Id. at 13.[2] When comparing Leidos’s and Peraton’s proposals, the source selection authority (i.e., the contracting officer) noted that both offerors demonstrated equivalent, beneficial experience in seven different areas of performance. Id. at 14-21. For example, when comparing offerors’ experience managing multi-platform environments, the agency noted that Leidos had significant experience providing fully automated solutions for virtualized servers, while Peraton similarly demonstrated a strong ability to provide multi-platform environments during its performance of the incumbent contract. Id. at 14. Ultimately, the agency evaluated Leidos’s proposal as offering the better value because neither proposal offered had a technical advantage, and Leidos’s proposed price was 19 percent lower than Peraton’s proposed price. Id. at 20.

After receiving its debriefing and learning that its proposal was unsuccessful, Peraton filed this protest with our Office.[3]

DISCUSSION

Peraton raises numerous challenges to the agency’s conduct of the acquisition. First, Peraton argues that the agency unreasonably evaluated its proposal under the relevant experience factor because the agency did not value its incumbent experience more highly. Second, Peraton argues that the agency unreasonably failed to issue two task orders in accordance with the terms of the solicitation, and that the agency failed to document its decision to issue just a single task order.

Third, Peraton argues that the source selection authority did not exercise her independent judgment when issuing the task order to Leidos. Fourth, Peraton argues that the source selection authority unreasonably made the tradeoff determination because she did not make meaningful comparisons between the proposals. Fifth, and finally, Peraton argues that the agency unreasonably made a responsibility determination for the awardee because the agency did not consider Leidos’s low proposed price as evidence of the firm’s inability to perform.

We have reviewed all of the challenges, and conclude that none provide us with a basis to sustain the protest. To the extent we do not discuss a particular challenge, it is denied. At the outset, we note that, in reviewing an agency’s evaluation of proposals and source selection decision, it is not our role to reevaluate submissions; rather, we examine the supporting record to determine whether the evaluation and decision were reasonable, consistent with the stated evaluation criteria, and adequately documented. Innovative Mgmt. Concepts, Inc., B‑408070.2, Dec. 4, 2013, 2014 CPD ¶ 49 at 3. A protester’s disagreement with the agency’s evaluation judgments, or with the agency’s determination as to the relative merits of the competing proposals, does not establish that the evaluation or source selection decision were unreasonable. Id.

Peraton’s Technical Evaluation

Peraton argues that the agency unreasonably evaluated its technical proposal under the relevant experience factor. Protest at 21. Specifically, Peraton complains that the agency failed to appreciate the strength of the firm’s relevant experience gained through its performance on the incumbent contract. Id. at 26. As evidence, Peraton points out that it has significant experience in the following areas: managing a multi-platform environment; designing, developing, implementing, and maintaining automated testing methods; large scale enterprise level data warehousing; fraud reporting; supporting modern technology foundation; and, identity and access management. Id. at 25-26.

In response, the agency argues that it reasonably evaluated Peraton’s proposal under the relevant experience factor. COS/MOL at 15. The agency explains that it assigned Peraton the highest adjectival rating of “[e]xtremely [s]imilar” because it examined Peraton’s incumbent experience and determined that the firm had demonstrated favorable performance. Id. at 16.

As background, Peraton referenced two prior contracts as demonstrating relevant experience. AR, Tab 5, Tech. Evaluation Report (TER) at 6; Protest, exh. C.2, Peraton Tech. Proposal at 89.[4] One contract referenced the firm’s incumbent experience, and the other contract referenced the firm’s experience providing support to another federal agency. Protext, exh. C.2, Peraton Tech. Proposal at 89.

The SSA evaluated Peraton’s referenced experience as being “extremely similar” to the instant acquisition. AR, Tab 5, TER at 6. The SSA identified Peraton’s performance on the incumbent contract as demonstrating strengths in virtually every area of performance. Id. For example, the SSA noted that Peraton had demonstrated exceptional performance providing a multi-platform environment, including [DELETED]. Id. at 8-9. Similarly, the SSA concluded that Peraton’s other referenced contract also demonstrated strengths in multiple areas of performance. Id. at 6. In total, the SSA identified 14 strengths against zero weaknesses. Id. at 11.

On this record, we do not find the SSA’s evaluation to be objectionable. While Peraton may argue that the agency failed to “recognize the inherent strengths and benefits” of its proposal, Comments and Supp. Protest at 33, we simply do not find any evidence supporting that assertion. Instead, the record shows that the SSA reviewed Peraton’s incumbent performance in significant detail, and noted how the firm’s performance offered several benefits. See AR, Tab 5, TER at 8-11. Furthermore, we note that Peraton fails to articulate precisely how specific features of its experience were undervalued or overlooked. See Comments and Supp. Protest at 33. Accordingly, we deny the protest allegation.[5]

Single Award

Peraton next challenges the agency’s decision to issue a single task order. Supp. Comments at 10-11. First, Peraton argues that the terms of the solicitation required the agency to issue two task orders. Id. at 10. Second, Peraton argues that the agency failed to document its reasons for issuing a single task order because the SOA does not contain any discussion of that determination. Id. Third, Peraton complains that the decision to issue a single task order was unreasonable. Comments and Supp. Protest at 8-9.

The SSA responds that it reasonably issued a single task order because, contrary to the protester’s interpretation, the RFTOP provided the agency with discretion to issue as many or as few task orders as necessary. Supp. MOL at 2. Additionally, the SSA explains that it issued a single task order because it determined that the single task order could satisfy all of its needs at a lower overall price. COS/MOL at 17.

As background, the RFTOP provided the following advisement:

The Government intends to award two task orders resulting from this solicitation to the responsible Contractor, whose proposal, conforming to the solicitation requirements, represents the best value to the Government. The Government reserves the right to award as many or as few task orders it deems necessary to fulfill its requirements.

RFTOP at 10. The SOA does not contain any discussion memorializing the agency’s decision to issue one task order. See AR, Tab 4, SOA at 12-20. As part of her statement of facts, however, the contracting officer provided the following explanation of the agency’s decision to issue a single task order:

Additionally, given that Leidos had a lower overall price, including the transition, base year, and all option years, in conjunction with the fact that its proposal offered relatively similar benefits to the agency, the [contracting officer] determined further that the government would be able to fulfill its requirements at an overall lower price if it awarded only one task order to Leidos, as opposed to two task orders.

COS/MOL at 13.

Where a protester and agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. See Glock, Inc., B‑414401, June 5, 2017, 2017 CPD ¶ 180 at 8. Where a dispute exists as to a solicitation’s actual requirements, we will first examine the plain language of the solicitation. Id.

Here, we think the protester unreasonably interprets the solicitation as requiring the agency to issue two task orders. Significantly, the RFTOP provides that the “Government intends to award two task orders,” which, contrary to the protester’s position, reflects only the government’s initial intent or expectation, and does not bind the SSA to issuing two task orders. See Canadian Commercial Corp./Liftking Indus., Inc., B‑282334 et al., June 30, 1999, 99-2 CPD ¶ 11 at 9 (solicitation’s terms expressing the agency’s intent to award two contracts does not create a legal obligation to award two contracts). Further, the solicitation explicitly provided the agency with discretion “to award as many or as few task orders it deems necessary[.]” RFTOP at 10-11. Thus, we do not find the protester’s interpretation to be reasonable because it disregards the provision giving the agency discretion to issue fewer than two task orders, and ignores that the solicitation only explains that the government intended to issue two task orders.

Next, we are not persuaded that the agency’s determination to issue a single task order was inadequately documented. We will review the documentation supporting a selection decision to determine whether that decision was adequately memorialized. C&B Constr., Inc., B‑401988.2, Jan. 6, 2010, 2010 CPD ¶ 1 at 6. Implicit in the foregoing is that the selection decision must be documented in sufficient detail to show that it was reasonable. Id. While we accord greater weight to the contemporaneous record in determining whether a selection decision was reasonable, post-protest explanations that are credible and consistent with the contemporaneous documentation will be considered in our review. Sabreliner Corp., B‑290515 et al., Aug. 21, 2002, 2003 CPD ¶ 4 at 11; see also Wackenhut Servs., Inc., B‑286037, B‑286037.2, Nov. 14, 2000, 2001 CPD ¶ 114 at 5 (“While we generally accord greater weight to contemporaneous evidence, we will consider post‑protest explanations that provide a rationale for contemporaneous conclusions, so long as those explanations are credible and consistent with the contemporaneous record.”).

The contemporaneous record shows that the agency considered both firms as offering relatively equal benefits in all areas of performance, and that Leidos had a lower evaluated proposed price. See AR, Tab 4, SOA at 20-21. The contemporaneous record also shows that the agency elected to issue a single task order. Id. at 21. While the SOA does not explicitly state that the agency elected not to issue multiple task orders, we think this conclusion is implicit in the agency’s determination. Indeed, the contracting officer’s statement provides as much when she explains that one task order was sufficient because Leidos had a lower overall price and could provide benefits similar to Peraton in all areas. COS/MOL at 14.

To the extent Peraton argues that our Office should disregard the contracting officer’s statement, we do not find that position persuasive. As noted above, our Office will consider post-protest explanations where, as here, the explanations are credible and consistent with the underlying record. See Wackenhut Servs., Inc., supra. Further, we do not think the contracting officer’s statement provides any new rationale for the decision to issue a single task order because her explanation simply articulates the obvious conclusion that a single task order was the most beneficial course of action based on the results of the evaluation and tradeoff analysis.

Finally, we address Peraton’s challenge that the agency unreasonably decided to issue a single task order. Given that the agency had discretion to issue as many or as few task orders as necessary, we review the determination for reasonableness. See Para Scientific Co., B‑299046.2, Feb. 13, 2007, 2007 CPD ¶ 37 at 3.

Here, we do not find the agency’s decision to be unreasonable. The contracting officer noted that she determined that the agency could fill all of its needs at a lower overall price by issuing a single task order to Leidos. COS/MOL at 14. We agree that this position is reasonable because a second task order is superfluous when the additional task order is more expensive and does not provide any appreciable benefit. See COS/MOL at 17.

To the extent Peraton argues that the decision was unreasonable because the agency could easily issue a second task order, or because the agency would benefit from its “unique experiences,” Protest at 29, we do not find that provides us with a basis to sustain the protest. Instead, we view these arguments as disagreeing with the agency’s judgment because they do not show that the contracting officer’s conclusions were inconsistent with the underlying evaluation record, or the terms of the solicitation. Accordingly, we deny this protest allegation.

Source Selection Authority’s Independent Judgment

Peraton argues that the source selection authority did not exercise her independent judgment because the SOA references the contract specialist as comparing proposals, as opposed to referencing the source selection authority’s (i.e., the contracting officer) determinations. Supp. Comments at 2. Peraton also points out that the SOA does not contain the contracting officer’s signature, or any statement showing that the contracting officer reviewed the findings or exercised her independent judgment. Comments and Supp. Protest at 23.

In response, the agency explains that the contract specialist drafted the SOA, and that the contracting officer ultimately reviewed the draft SOA and relied on the findings therein to exercise her independent judgment. Supp. MOL at 8. The SSA points out that this procedure is consistent with Federal Acquisition Regulation (FAR) 15.308, which provides that a source selection authority may delegate preparation of the selection decision to another agency official, and the source selection authority may use any document prepared so long as the document reflects her independent judgment. Id.

The SOA includes multiple references to the contract specialist as participating in the tradeoff determination and the qualitative comparisons. For example, when announcing the award decision, the SOA provides “the [contract specialist] determines that a task order award to Leidos, Inc. in the amount of . . . is in the best interest of the Government.” AR, Tab 4, SOA at 21. Additionally, the SOA shows that the contract specialist compared the proposals. Id. at 13 (“When compared to Peraton’s proposal, the [contract specialist] determined that Leidos and Peraton had similar experience under Factor 1 ‘Relevant Experience’ such that both proposals met or exceeded the terms of the solicitation and offered significant added benefits to the Government.”).

Significantly, however, the record also includes a broader reference to the agency as conducting the tradeoff analysis. Indeed, when explaining the tradeoff analysis, the SOA provides the following:

To conclude, the agency determines there is substantially less risk in issuing an award to Leidos, who in terms of impact to the agency, provides relatively similar benefits at a significantly cheaper price when compared to Peraton.

AR, Tab 4, SOA at 20 (emphasis added). Furthermore, this section, which explains the specific tradeoff analysis, does not reference the contract specialist as determining that Leidos and Peraton proposed technically similar solutions, or that Peraton’s proposal was not worth the 19 percent price premium. Id.

Additionally, the record contains declarations from the contracting officer and the contract specialist explaining how the SOA was prepared. The contracting officer explains that she assigned the contract specialist to draft the SOA, instructed the contract specialist on what comparisons and determinations to include in the SOA, and ultimately revised the SOA to reflect her best-value determination. Supp. AR, Tab 19, Decl. of Contracting Officer (CO) at 2. Further, the contracting officer explains that she reviewed the SOA to ensure that the tradeoff determination reflected her independent judgment prior to making the award. Id.

Similarly, the contract specialist explains that she drafted the SOA at the direction and under the instruction of the contracting officer. Supp. AR, Tab 20, Decl. of Contract Specialist (CS) at 1. The contract specialist also confirms that she did not exercise any independent authority, but rather included only the contracting officer’s judgments and determinations. Id.

On this record, we do not find that the contracting officer failed to exercise her independent judgment. We have consistently recognized that agency selection officials have broad discretion in determining the manner and extent to which they will make use of technical and cost evaluation and comparison results in making their determination. See Dewberry Crawford Grp.; Partner 4 Recovery, B‑415940.11 et al., July 2, 2018, 2018 CPD ¶ 298 at 29. Our Office has explained so long as the ultimate selection decision reflects the selection official’s independent judgment, agency selection officials may rely on reports, analyses, and comparisons prepared by others. See id at 29-30. Further, the fact that a selection official based a decision on the recommendations of other agency evaluators, without performing an independent review of all documentation, is insufficient to show that the decision did not represent the selection official’s independent judgment. Id.

Here, the record shows that the contracting officer relied on the draft tradeoff determination prepared by the contract specialist. Supp. AR, Tab 19, Decl. of CO at ­­2; Supp. AR, Tab 20, Decl. of CS at 1. While the tradeoff determination may include narrative components showing the contract specialist’s comparisons between Peraton and Leidos, we do not find that objectionable since the selection official may rely on other agency evaluator’s reports and analysis in order to make an informed judgment. See FAR 15.308; see also Latecoere Int’l, Inc.--Advisory Op., B‑239113, B‑239113.3, Jan. 15, 1992, 92-1 CPD ¶ 70 at 10 (explaining “there is no legal requirement that [a source selection authority] personally write the document that reflects the award selection decision”).

Further, to the extent Peraton argues that the contracting officer did not participate in the selection decision, we are not persuaded. As noted above, the agency produced declarations from both the contracting officer and the contract specialist showing that the SOA was prepared at the direction and under the supervision of the contracting officer, and that the tradeoff determination reflects the contracting officer’s independent judgment. Supp. AR, Tab 19, Decl. of CO at 2; Supp. AR, Tab 20, Decl. of CS at 1. We think that this explanation is consistent with the SOA because while the tradeoff analysis is based on the contract specialist’s comparisons, it reflects a broader “agency” perspective. See AR, Tab 4, SOA at 20.

We also note that the record contains an email communication from the contracting officer to the contract specialist showing that the contracting officer had reviewed and commented on a draft version of the SOA prior to issuance of the task order. See Supp. AR, Tab 29, Email from CO to CS at 1. Again, this appears consistent with the SOA, which shows that the tradeoff analysis section relies on the contract specialist’s comparisons but ultimately shows the contracting officer making her own determination on behalf of the agency. See AR, Tab 4, SOA at 20. Thus, we deny these protest allegations because the record shows that the contracting officer relied on the contract specialist to draft the SOA and make comparisons, but ultimately conducted the tradeoff determination exercising her own independent judgment.

Reasonableness of Tradeoff Determination

Peraton argues that the agency unreasonably made the tradeoff determination. According to Peraton, the SSA unreasonably concluded that the proposals offered similar benefits from their respective experiences because the agency did not compare the relative merits of the proposals. Comments and Supp. Protest at 25-29, 33-36. The agency responds that it performed a thorough qualitative analysis, and made the tradeoff determination consistent with the terms of the solicitation. COS/MOL at 22-23.

As noted above, the SSA identified Leidos’s proposal as representing the better value because both firms offered relatively similar benefits in terms of relevant experience, and Leidos proposed a lower price. AR, Tab 4, SOA at 20. Additionally, when conducting the tradeoff determination, the agency compared the firms’ relevant experience in terms of size, duration, and scope. Id. at 13. In terms of size, the agency noted that both firms performed contracts similar in dollar value to the instant acquisition. Id. at 13-14. As for duration, the agency determined that both offerors’ referenced contracts demonstrated more than one year of performance as required by the solicitation. Id. at 19.

Regarding scope, the agency determined that both firms offered equivalent beneficial experience in every area of contract performance. AR, Tab 4, SOA at 13-19. For example, when comparing the firms’ experiences designing and maintaining automated testing methods, the agency noted that Leidos had successfully maintained automation framework as one of its referenced experiences which resulted in significant cost savings, and that likewise Peraton had enhanced automation frameworks on the incumbent contract which also reduced operating costs. Id. at 15. As another example, the agency determined that both firms possessed relatively equal experience modernizing technology because Leidos’s experience showed that the firm had modernized a 20 year-old legacy application for another agency, and that Peraton had modernized several internet applications during performance of the incumbent contract. Id. at 17.

On this record, we do not object to the agency’s tradeoff determination. Our review shows that the agency reviewed and compared the various benefits offered by both firms’ demonstrated experiences. The record shows that the agency meticulously compared the firms’ respective performance, and determined that both firms would be able to perform the requirement at a high level. Further, the record shows that the agency compared the specific tasks and functions completed, and concluded that the tasks and functions, while different, represented that the firms possessed equivalent underlying skillsets.

To the extent Peraton complains that it possessed better, more relevant experience, we do not find such argument provides us with a basis to sustain the protest. See, e.g., Comments and Supp. Protest at 26 (complaining that Peraton possessed better experience with automated testing methods because its experience showed that the firm [DELETED], while Leidos’s experience showed [DELETED]). As discussed earlier, disagreement with the agency’s evaluation judgments does not provide a valid basis for protest. Moreover, we do not find Peraton’s allegation persuasive because it merely shows that the firms demonstrated their skillsets in different circumstances, but does not demonstrate that the agency’s underlying determination (i.e., that the firms possessed similar skillsets) was unreasonable. Accordingly, we deny the protest allegation.

Responsibility Determination

As a final matter, Peraton argues that the SSA unreasonably made a responsibility determination when the agency failed to consider whether Leidos’s low proposed price impacted the firm’s ability to perform the contract. Protest at 38-39. According to Peraton, the agency should have obtained additional evidence showing that Leidos could perform the contract at its proposed labor category rates. Id. at 39.

The agency requests dismissal of this allegation, arguing that its alleged failure to consider Leidos’s submission of a low price, or even a below-cost offer, does not render the responsibility determination defective. Req. for Dismissal at 3-5. In response, Peraton repeats the argument that Leidos’s low proposed labor category rates should have raised concern about the firm’s ability to perform. Peraton’s Resp. to Req. for Dismissal at 9-10.

Our Office will review a challenge to an agency’s affirmative responsibility determination where the protester presents specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. 4 C.F.R. § 21.5(c). We therefore have reviewed circumstances such as: credible allegations that an agency failed to properly consider that a contractor committed fraud; allegations that principals of a contractor had criminal convictions; or, allegations that a contractor engaged in improper financial practices and improperly reported earnings. Cargo Transport Sys. Co., B‑411646.6, B‑411646.7, Oct. 17, 2016, 2016 CPD ¶ 294 at 10-11.

Here, we agree with the agency that Leidos’s alleged submission of a below-cost offer does not meet our threshold to review the responsibility determination. See M-Cubed Information Sys., Inc., B‑284445, B‑284445.2, Apr. 19, 2000, 2000 CPD ¶ 74 at 9-10 (allegation that agency should have considered protester’s alleged below-cost offer as part of the responsibility determination did not meet our threshold for review). Indeed, our Office has explained that the submission of a below-cost offer is not in itself legally objectionable, and does not, by itself, cast any doubt upon the reasonableness of the responsibility determination. Atlantic Maintenance, Inc., B‑239621, B‑239621.2, June 1, 1990, 90-1 CPD ¶ 523 at 1. Accordingly, we dismiss the protest allegation.

The protest is denied.

Edda Emmanuelli Perez
General Counsel

 

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