ICF Incorporated, LLC--Costs

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

Decision

Matter of: ICF Incorporated, LLC--Costs

File: B-421850.5

Date: February 9, 2024

DIGEST

Request for reimbursement of protest costs is denied where the agency took prompt corrective action in response to the protester’s filing of supplemental protest allegations, and where the initial protest grounds were not clearly meritorious.

ICF Incorporated, L.L.C., of Reston, Virginia, requests that our Office recommend that ICF be reimbursed the reasonable costs of filing and pursuing a protest of the issuance of a task order to The Cadmus Group LLC, of Waltham, Massachusetts, under request for proposals (RFP) No. 693JJ323R000008, issued by the Department of Transportation (DOT), Federal Highway Administration, to support the DOT’s establishment and administration of the Reconnecting Communities Institute.

We deny the request.

BACKGROUND

On June 11, 2023, the DOT issued the solicitation to holders of the General Services Administration’s One Acquisition Solution for Integrated Services (OASIS) multiple award indefinite‑delivery, indefinite-quantity (IDIQ) contract in accordance with the procedures of Federal Acquisition Regulation (FAR) subpart 16.5. Contracting Officer’s Statement and Memorandum of Law (COS/MOL) at 2. The RFP anticipated the issuance of a time-and-materials task order for contractor support to establish and administer the Reconnecting Communities Institute, which will provide training and technical assistance to build organizational or community capacity in transportation planning and identify innovative solutions to infrastructure challenges aligned with the DOT’s Reconnecting Communities Pilot Program. Agency Report (AR), Exh. 1, RFP at 9.

The solicitation established that award would be made on the basis of a best-value tradeoff using two evaluation factors--technical and price--with the technical factor being significantly more important than price. RFP at 4. Technical proposals were to be assigned confidence ratings of high confidence, some confidence, or low confidence in an evaluation process that would identify aspects of the proposal that increased or decreased confidence.[1] COS/MOL at 5. The solicitation provided that if proposals were of equal merit under the technical factor, price might become more important in the award decision. RFP at 4-5

The technical factor consisted of the following four subfactors, listed in descending order of importance: technical approach, staffing approach, experience, and supporting community wealth building.[2] RFP at 5-6. As relevant here, for the staffing approach subfactor, offerors were required to “Demonstrate a sound and realistic staffing approach to include a satisfactory staffing mix, program management, clear description of each staff’s proposed role, and realistic level of effort and allocation of resources for each role.” Id. at 6. Offerors were also required to demonstrate an ability to provide the areas of expertise needed to develop and implement technical assistance during performance. Id. The DOT received four proposals prior to the submission deadline. COS/MOL at 6. The agency evaluated the offerors’ proposals as follows:

AR, Exh. 7, Source Selection Decision (SSD) at 16.

In the technical evaluation team’s evaluation of ICF’s technical proposal, the agency identified three aspects of the proposal that decreased the evaluators’ confidence in the protester’s proposal. AR, Exh. 6, Technical Evaluation Report at 7‑9.[3] As relevant here, the agency assessed a decrease in confidence under the staffing approach subfactor because it found ICF’s proposal did not offer a significant amount of engineering staff expertise. Id. at 8. The DOT also assessed decreases in confidence in Cadmus’s proposal, including three decreases in confidence under the staffing approach subfactor. Id. at 4-6.

The contracting officer, who was the source selection authority, reviewed the findings of the technical evaluation team and the contract specialist. See AR, Exh. 7, SSD. The contracting officer concluded that ICF’s $36 million proposal and Cadmus’s $27 million proposal were technically equal, and because the solicitation provided that price might be more important in such a scenario, the contracting officer concluded that Cadmus’s proposal presented the best value. Id. at 17; Supp. COS ¶ 2. The DOT issued the task order to Cadmus on July 24, 2023, and the agency provided each offeror with a debriefing.

On July 31, ICF filed a protest with our Office,[4] arguing that the solicitation contained a latent ambiguity with respect to the preparation and evaluation of price proposals, and challenging aspects of the agency’s price evaluation, the evaluation of technical proposals, and the best-value award decision.[5] Protest at 2. In protesting the evaluation of technical proposals, ICF challenged the DOT’s assessment of the three decreases in confidence to its proposal.[6] Id. at 19. ICF also argued that the agency’s evaluation of Cadmus’s proposal under the staffing approach subfactor was inconsistent with the evaluation criteria because the DOT failed to consider whether Cadmus proposed a realistic level of effort--an argument that ICF based solely on Cadmus’s lower total price. Id. at 21. In response, the agency pointed to the terms of the solicitation to argue that its evaluation of the offerors’ proposals was reasonable and consistent with the RFP, and that ICF’s protest arguments amounted to disagreement with the agency’s evaluation and award decision. See COS/MOL at 9.

Following the submission of the agency report, ICF filed a supplemental protest on September 11, challenging the agency’s evaluation of Cadmus’s proposal under the staffing approach subfactor, as well as the best-value award decision. Comments & 1st Supp. Protest at 7-13. With respect to the staffing approach subfactor, the protester argued that Cadmus’s proposal “should have been disqualified, or at the very least, demerited, for proposing an unrealistic level of effort,” again basing its complaint on the awardee’s pricing. Id. at 13. As for the best-value award decision, the protester argued that the tradeoff was unreasonable because the source selection authority relied on flawed evaluations and failed to look behind the adjectival ratings and compare the relative merits of the offerors’ proposals.[7] Id. at 8. In its response, the DOT defended the evaluation and award decision as reasonable and consistent with the terms of the solicitation. Supp. MOL at 4‑5. The agency also asserted that no tradeoff was needed because the offerors’ proposals were equally rated under the technical factor, and Cadmus’s proposal was lower priced. Id.

Thereafter, on September 22, ICF raised a second set of supplemental protest grounds. After repeating many of its prior arguments, the protester argued that the agency engaged in disparate treatment by assessing a “weakness” to ICF’s proposal under the staffing approach subfactor for failing to demonstrate sufficient engineering experience and not assessing a weakness to Cadmus’s proposal even though Cadmus’s leadership team similarly lacked engineering experience. Supp. Comments & 2nd Supp. Protest at 7. ICF also asserted that Cadmus’s staffing matrix failed to comply with the RFP’s requirements. Id. at 9.

On September 27, the deadline to submit a second supplemental agency report, the DOT filed a notice of voluntary corrective action. Electronic Protest Docketing System (Dkt.) No. 61. In the notice, the agency stated that it had reviewed the supplemental protest grounds and “In response to these supplemental protest grounds, [DOT] proposes taking corrective action related to its technical evaluation of [the staffing approach subfactor].” Notice of Corrective Action at 1 (internal citations omitted). The agency also stated that it intended to reevaluate the offerors’ technical proposals under the staffing approach subfactor and incorporate those results into a revised source selection decision, if appropriate. Id. at 2. The agency asked our Office to dismiss the protest as academic. Id.

ICF filed an objection to the proposed corrective action because the corrective action would not address the protester’s allegation that the solicitation contained a latent ambiguity. On October 9, ICF filed an additional protest, challenging the scope of the agency’s corrective action, in which the protester reiterated its argument that the solicitation contained a latent ambiguity with respect to the way prices would be submitted and evaluated.

On November 7, our Office issued a decision dismissing in part and denying in part ICF’s protest. ICF Incorporated, L.L.C., B-421850 et al., Nov. 7, 2023, 2023 CPD ¶ 254. We dismissed the protester’s challenges to the agency’s evaluation of the offerors’ technical proposals and the best-value award decision because the DOT’s corrective action rendered those protest grounds academic. While we declined to dismiss ICF’s protest alleging there was a latent ambiguity in the solicitation because the corrective action did not render this allegation academic, we denied that protest ground because we concluded that ICF’s interpretation of the solicitation was unreasonable.

On November 20, ICF filed its request for reimbursement of its protest costs.

DISCUSSION

ICF now requests that our Office recommend that ICF be reimbursed for its costs of filing and pursuing the initial and supplemental protests, including attorneys’ fees. Req. at 1. The agency responds that reimbursement is not warranted because the DOT took prompt corrective action in response to ICF’s allegation of disparate treatment under the staffing approach subfactor, which was first raised in ICF’s second supplemental protest. Agency Resp. at 3-5.

When a procuring agency takes corrective action in response to a protest, our Office may recommend under 4 C.F.R. § 21.8(e) that the agency reimburse the protester its reasonable protest costs where, based on the circumstances of the case, we determine that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest, thereby causing the protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief. CloudFirstJV--Costs, B-416872.4, May 10, 2019, 2019 CPD ¶ 177 at 3.

With respect to the promptness of the agency’s corrective action, we review the record to determine whether the agency took appropriate and timely steps to investigate and resolve the impropriety. Cooper/Ports Am., LLC, B-419000.3, Feb. 18, 2021, 2021 CPD ¶ 327 at 4. Generally, we consider corrective action to be prompt if it is proposed by the due date for the agency report responding to the protest. See Apex Transit Sols.--Costs, B‑418631.4, Feb. 8, 2021, 2021 CPD ¶ 102. The imposition of costs is not intended as an award to prevailing protesters or as a penalty to the agency, but rather, is designed to encourage agencies to take prompt action to correct apparent defects in a competitive procurement. See Takota Corp.--Costs, B‑299600.2, Sept. 18, 2007, 2007 CPD ¶ 171 at 3.

As a prerequisite to recommending that costs be reimbursed where a protest has been rendered academic by corrective action, not only must the protest have been meritorious, but it also must have been clearly meritorious, i.e., not a close question. Sumaria Sys., Inc.--Costs, B-418440.3, July 16, 2020, 2020 CPD ¶ 240 at 5. A protest is clearly meritorious where a reasonable agency inquiry into the protest allegations would have shown facts disclosing the absence of a defensible legal position. Harley Marine Servs., Inc.--Costs, B-416033.4, Mar. 15, 2019, 2019 CPD ¶ 121 at 4. The existence of any defensible legal position or close question is sufficient to show that a protest allegation was not clearly meritorious so as to warrant a recommendation for the reimbursement of protest costs. Sumaria Sys., supra.

ICF contends that “[t]here is no dispute that ICF filed a clearly meritorious protest,” ICF Resp. at 1, but the protester does not meaningfully argue that the protest grounds it raised in its initial and first supplemental protest were clearly meritorious. Instead, the protester asserts that (1) its allegation of unequal treatment, raised for the first time in its second supplemental protest, was clearly meritorious, and (2) the DOT unduly delayed taking corrective action in response to the earlier protests. In this regard, ICF claims that “the Agency was required to undertake a ‘reasonable agency inquiry’ of the procurement record to determine whether any flaws warranted corrective action.” Req. at 2. Stated differently, ICF asserts that if the DOT had conducted a reasonable review of the initial allegations challenging the agency’s evaluation of ICF’s proposal under the staffing approach subfactor and the best-value award decision, the DOT would have identified ICF’s second supplemental protest grounds, i.e., unequal treatment, and taken corrective action. Req. at 2, ICF Resp. at 3.

Generally, the DOT responds that our Office should not recommend the agency reimburse ICF it’s protest costs because the requester’s initial and first supplemental protest grounds were not clearly meritorious, and the agency took prompt corrective action in response to the unequal treatment allegation first raised in ICF’s second supplemental protest. Agency Resp. at 3-5. We agree, and, as explained below, find no basis to recommend reimbursement of costs here.

We are unpersuaded by ICF’s argument that a reasonable inquiry by the agency into its initial and first supplemental grounds should have led the agency to discover the issue ultimately leading to corrective action, i.e., the alleged unequal evaluation under the staffing approach subfactor.

With respect to the protester’s initial challenge to the agency’s evaluation of ICF’s proposal under the staffing approach subfactor, ICF argued that the agency unreasonably assigned its proposal a “weakness” for proposing a team that did not offer a significant amount of engineering expertise. Protest at 19. This allegation pertained to the DOT’s evaluation of ICF’s own proposal. The second supplemental protest, on the other hand, argued that the agency engaged in disparate treatment because Cadmus’s proposal showed that it also lacked engineering expertise. Supp. Comments & 2nd Supp. Protest at 7. We view those issues as involving different sets of core facts because ICF’s initial argument challenged the DOT’s evaluation of this aspect of ICF’s proposal; it did not question the evaluation of Cadmus’s proposal.[8] Accordingly, we do not consider the protester’s allegation of an unequal evaluation, first raised in ICF’s second supplemental protest, as having a sufficient nexus to its initial protest of the agency’s evaluation of ICF proposal, so that a reasonable agency investigation of the initial protest ground would have necessarily led the agency to uncover the alleged unequal treatment. See Noble Supply & Logistics, Inc.--Costs, B-417571.4, Nov. 27, 2019, 2019 CPD ¶ 411 at 6-7.

The protester also argues that the alleged unequal treatment would have been evident to the DOT if the agency had investigated ICF’s challenges to the best-value award decision. ICF Resp. at 3. In its protest, ICF argued, generally, that the tradeoff decision was unreasonable because the underlying evaluations were flawed, and the contracting officer failed to undertake a qualitative assessment of the offerors’ proposals. Comments & 1st Supp. Protest at 7‑8. Now, ICF suggests that a reasonable investigation into the protester’s tradeoff allegation would have revealed the alleged unequal treatment. We reject ICF’s assertion in this regard. The alleged unequal treatment pertained to one discrete aspect of the offerors’ technical proposals--the sufficiency of each offeror’s engineering staff expertise. The alleged unequal treatment involved a different set of core facts than the reasonableness of the best-value award decision. Accordingly, we find the protester’s challenge to the best-value award decision does not have a sufficient nexus to its allegation of unequal treatment, and a reasonable investigation of the best-value award decision would not have revealed the alleged unequal treatment. See Noble Supply, supra.

We find that a reasonable inquiry by the agency into ICF’s initial and first supplemental grounds would not have led the DOT to discover the issue ultimately leading to corrective action. Additionally, we find that the DOT promptly took corrective action in response to ICF’s second supplemental protest arguments. In ICF’s comments to the supplemental agency report, the protester raised two supplemental protest grounds: the agency engaged in unequal treatment in its assessment of a “weakness” to ICF’s proposal under the staffing approach subfactor, and Cadmus failed to comply with the solicitation’s instructions regarding its staffing matrix. Supp. Comments & 2nd Supp. Protest at 7, 9. In the notice of corrective action, the agency advised our Office that it would be taking corrective action by reevaluating the offerors’ proposals under the staffing approach subfactor--the subfactor relevant to ICF’s second supplemental protest argument.[9] Notice of Corrective Action at 1. Given that the scope of the voluntary corrective action is limited to a reevaluation of proposals under the staffing approach subfactor, we understand the intent of the proposed corrective action to be to address ICF’s allegation of unequal treatment, which was raised in the second supplemental protest. Accordingly, we conclude that the agency’s corrective action was not unduly delayed because it was taken in response to new protest grounds first raised in the second supplemental protest and prior to the due date for a supplemental agency report addressing those grounds.

Additionally, although not expressly addressed by the protester,[10] we do not find any of ICF’s initial or first supplemental protest grounds to be clearly meritorious. For example, ICF challenged the best-value award decision, arguing that the contracting officer failed to undertake an independent review of proposals and did not look beyond the adjectival ratings. Comments & 1st Supp. Protest at 8-9. The protester contended that the award decision was unreasonable because “the Agency made no attempt to determine whether ICF and Cadmus, in fact, presented technically equivalent proposals.” Id. at 9. In response, the DOT stated that the contracting officer reviewed and adopted the evaluator’s findings, including the increases and decreases in confidence identified in each proposal. Supp. MOL at 6. The agency argued a tradeoff was unnecessary because the DOT selected a proposal for award that was technically equal to the protester’s proposal and lower priced. Id. at 7.

Where, as here, a solicitation provides for the issuance of a task order on a best-value tradeoff basis, it is the function of the source selection authority to perform a price/technical tradeoff, that is, to determine whether one proposal’s technical superiority is worth its higher price. RiverTech, LLC, B-420246, Dec. 21, 2021, 2021 CPD ¶ 393 at 5. Between two technically equal proposals, price may properly become the determining factor; a documented tradeoff determination is not required where the agency selects the lowest-priced proposal among proposals the agency has reasonably determined to be equal technically based on a documented qualitative assessment of proposals. Apogee Eng’g, LLC, B-414829.2, B-414829.3, Feb. 21, 2019, 2019 CPD ¶ 85 at 11; see also General Dynamics Info. Tech., Inc., B-417616.2 et al., Mar. 31, 2020, 2020 CPD ¶ 132 at 20-21. Additionally, there is no need for extensive documentation of every consideration factored into a tradeoff decision; rather, the documentation need only be sufficient to establish that the agency was aware of the relative merits and costs of the competing proposals and that the source selection was reasonably based. Ironclad Tech. Servs., LLC, B-419976.2, May 2, 2022, 2022 CPD ¶ 104 at 5.

As noted above, in the technical evaluation, the agency identified aspects of the offerors’ proposals that increased or decreased the evaluators’ confidence in the offeror’s ability to successfully perform the task order. AR, Exh. 6, Technical Evaluation Report at 4-9. Based on those evaluation findings, the technical evaluation team assigned each proposal a confidence rating under the technical factor, and the proposals of ICF and Cadmus received the same confidence rating. In the SSD, the contracting officer looked beyond the confidence ratings by reviewing and considering the increases in confidence and decreases in confidence that the technical evaluation team identified in each proposal. AR, Exh. 7, SSD at 6-15. The contracting officer concluded that the proposals of ICF and Cadmus were equal under the technical factor. Id. at 17; Supp. COS ¶ 2. The contracting officer then selected Cadmus’s proposal for award because Cadmus offered a lower price. AR, Exh. 7, SSD at 17.

On this record, we find no basis to object to the DOT’s determination that the proposals of ICF and Cadmus were equal under the technical factor. Here, although ICF complained that the contracting officer did not compare the offerors’ proposal, the record showed that the contracting officer reviewed the underlying evaluation results, considered the qualitative value of the offerors’ proposals, and reasonably determined them to be technically equal. The agency recognized aspects of each offeror’s proposal that increased and decreased the agency’s confidence in the offeror’s ability to successfully perform the requirement, and on balance, the DOT concluded that the proposals were equal. AR, Exh. 7, SSD at 17; Supp. COS ¶ 2. While the record does not demonstrate that the agency conducted a line-by-line comparison of each benefit and risk for the proposals, such an examination is not required. FAR 16.505(b)(7); Ironclad Tech. Servs., supra. Furthermore, because the agency selected Cadmus’s technically equal and lower priced proposal for award, no tradeoff was necessary. General Dynamics Info. Tech., Inc., supra. In light of the foregoing, we find that ICF’s protest of the best-value award decision was not clearly meritorious.

As an additional example, we also find ICF’s protest of the agency’s evaluation of Cadmus’s proposal under the staffing approach subfactor was not clearly meritorious. In its initial and first supplemental protests, ICF challenged the agency’s evaluation of Cadmus’s proposal under the staffing approach subfactor, based on Cadmus’s lower price. ICF argued that the agency should not have found Cadmus’s staffing approach was realistic and complained that the DOT’s evaluation was unreasonable because it failed to appreciate that “Cadmus’[s] materially lower overall price necessarily was driven by a comparatively low proposed level of effort.” Comments & 1st Supp. Protest at 13; see also Protest at 21.

In its report addressing ICF’s challenges to the evaluation, the DOT argued that the agency evaluated Cadmus’s staffing matrix in accordance with the evaluation criteria and found that Cadmus’s proposal reflected a proper understanding of the level of effort. Supp. MOL at 10-11 (citing AR, Exh. 7, SSD at 14, and AR, Exh. 6, Technical Evaluation Report at 5). Specifically, the DOT argued that the solicitation provided that the agency would evaluate whether the offeror’s proposal demonstrated a sound and realistic staffing approach, including a realistic level of effort and allocation of resources for each role. Id. at 9-10. The agency pointed out that the technical evaluation criteria did not include an assessment of the offeror’s proposed price. Additionally, the agency--relying on Cadmus’s proposal and the evaluation record--contended that the evaluators found that the hours proposed in Cadmus’s staffing matrix aligned sufficiently with the agency’s estimate. Id. at 11-13.

In reviewing protests challenging an agency’s evaluation of proposals, our Office does not reevaluate proposals or substitute our judgment for that of the agency, but rather examines the record to determine whether the agency’s judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement laws and regulations. Peraton, Inc., B-420918.2, B‑420918.3, Dec. 8, 2022, 2022 CPD ¶ 311 at 3-4. A protester’s disagreement with an agency’s judgment, without more, is not sufficient to establish that an agency acted unreasonably. Vertex Aerospace, LLC, B‑417065, B-417065.2, Feb. 5, 2019, 2019 CPD ¶ 75 at 8.

On this record, we find that ICF’s protest ground does not meet the high bar set by the “clearly meritorious” standard. See, e.g., Oready, LLC--Costs, B-418297.2, Mar. 30, 2020, 2020 CPD ¶ 131 at 5; Northrop Grumman Sys. Corp.--Costs, B-412278.6, Feb. 7, 2017, 2017 CPD ¶ 68 at 5. For one, ICF’s protest of the agency’s evaluation of Cadmus’s staffing approach centered on Cadmus’s proposed price, but the evaluation criteria for the staffing approach--a subfactor under the technical factor--did not include a consideration of price or labor rates. Moreover, the record demonstrated that the agency evaluated the labor categories and hours in Cadmus’s staffing matrix in accordance with the solicitation. AR, Exh. 6, Technical Evaluation Report at 5. The evaluators reviewed Cadmus’s staffing matrix and found that the estimated hours, labor categories, and skill levels reflected an understanding of the requirements. Id. The DOT reasonably found that the labor hours that Cadmus proposed aligned with the estimates provided in the solicitation. Supp. MOL at 11; RFP at 59-61; AR, Exh. 13, Cadmus Technical Proposal Excerpt at 26-27. The evaluators also noted that Cadmus’s staffing matrix included professionals with the necessary expertise to perform the tasks contemplated by the performance work statement. AR, Exh. 6, Technical Evaluation Report at 5. We find no basis to question the DOT’s conclusions regarding the realism of Cadmus’s staffing approach. Accordingly, we cannot conclude that ICF’s challenge to the agency’s evaluation of Cadmus’s proposal was clearly meritorious, i.e., that it was not a close question or that the agency lacked a legally defensible position.

The request is denied.

Edda Emmanuelli Perez
General Counsel