Introduction

Our Federal Government has yet to “get it right” when it comes to self-scoring RFPs - how can we forget Alliant 2 SB, 16 Amendments on CIO-SP4 or the VA’s rush to market of T4NG2? Protests are part of GovCon life. While pre-award and post-award protests certainly delay RFP evaluation and contract award, we all hope that they produce better procurements for both industry and government.

This most recent decision from The United States Court of Federal Claims (Nos. 22-cv-1466, 22-cv 1468; redacted decision posted 4-28-2023) has significant impact for GSA POLARIS proposal evaluations as well as the upcoming OASIS+ solicitation and perhaps CIO-SP4 and VA T4NG2 that are undergoing proposal evaluation and contract award.

BACKGROUND

On 4/21 the United States Court of Federal Claims issued a decision in the matter of SH Synergy, LLC and VCH Partners, LLC v. The United States; a pre-award bid protest of GSA POLARIS with three claims.

1. GSA was unduly restrictive over the limitation of multiple MP-JV's with the same mentor bidding multiple times on the same RFP.
2. GSA evaluated MP-JV relevant experience by the same evaluation criteria as "other offerors generally".
3. GSA violates 41 USC 3306(c) by failing to evaluate price at the GWAC/IDIQ level.

The Court GRANTS and DENIES in part these motions and ENJOINED GSA from evaluating proposals and awarding IDIQ contracts. The Court requires GSA to amend the RFP's to address these issues, provides suggestions on possible remedies, but does not specifically lay out HOW they must amend the solicitations.

In this article I’ll discuss each of these three complaints and attempt to identify important lessons for industry that apply to the broader landscape of GWAC/IDIQ competitions.

Lower Judicial Standards in Pre-Award Protests

On page 18 of the decision we learn that “Courts apply a less stringent prejudice standard to pre-award protest due to the more limited factual landscape involved in such cases. Whereas a post-award protestor must demonstrate it had a “substantial chance” of receiving the award absent the alleged procurement error, a pre-award protestor need only allege a “non-trivial competitive injury which can be addressed by judicial relief” to show prejudice.”

LESSON: Be ready to protest large procurement prior to proposal submission to be able to take advantage of this lower standard of injury and prejudice. You may find it harder to make your winning argument after proposal evaluation has started.

Claim #1: Multiple MP-JV’s with the Same Mentor

In their first claim, plaintiffs argue GSA’s decision to prohibit Mentor-Protege JVs that share a mentor from bidding on the same Solicitation renders the Polaris Solicitations “unduly restrictive”.

This argument was a bit of a Hail Mary on the part of the plaintiffs. In their decision, the Court essential said that GSA properly excluded these bids pursuant to the clear language of 13 CFR § 125.9(b)(3)(i) which says a “mentor that has more than one protégé cannot submit competing offers in response to a solicitation for a specific procurement through separate joint ventures with different protégés.”

Plaintiff’s attorneys made some clever arguments to try and dance around this clear language, but the court wasn’t buying it.

LESSON: Find good lawyers that can make creative arguments, just make sure all your arguments are not desperation passes for a touchdown with no time left on the clock.

Claim #2: Evaluating MP-JV’s by the Same Standard as other Offerors Generally

Plaintiff’s second claim  was that the Polaris Solicitation violated SBA regulation 13 CFR § 125.8(e) by evaluating Protege relevant project experience by the same standard they evaluate project experience from “other offerors generally.”

The key phrase in this FAR clause is “A procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.”

Plaintiff’s counsel clearly showed how GSA applied the same evaluation criteria to Protege experience references as they did to “other offerors generally”. Same size projects with the same criteria were awarded the same points.

If you remember the Polaris Solicitation Instructions, GSA required the Protege in an Mentor-Protege Joint Venture to submit one (1) Relevant Experience Project and limited the Mentor to no more than three (3) projects.

“Unfair” we all cried out last year. You can’t do this while letting a SB prime get ALL their juicy corporate experience from subcontractors…not fair!

Well…the Court disagreed with that argument and here is why.

• 13 CFR § 125.8(e) begins by stating that “ a procuring activity must consider work done and qualifications held individually by each partner to the joint venture as well as any work done by the joint venture itself previously.” So, GSA was within bounds to require a corporate experience reference from the Protege.
• 13 CFR § 125.2(g) states that “the agency must consider the capabilities, past performance, and experience of each first tier subcontractor that is part of the team as the capabilities, past performance, and experience of the small business prime contractor...” So, GSA was within bounds to evaluate subk experience as equivalent to prime experience.

Ultimately, the Court agreed with Plaintiffs that the Polaris Solicitations violate 13 CFR § 125.8(e) by applying the same evaluation criteria to projects submitted by protege firms and other offerors alike. The Court did not specify HOW GSA must amend the RFP’s to fix this issue, only that they must do so “in a manner consistent with this Memorandum and Order.”

LESSON 1: In the absence of an appeal to the Circuit Court, look for GSA to amend the Polaris RFP’s to change the MP-JV evaluation criteria for Relevant Experience Projects. One of their challenges will be to do so in a manner that does not cause general upheaval in the market and cries of “had we known that this was the evaluation criteria we would have bid as an MP-JV, but now we can’t!!” Will GSA cancel and reissue Polaris as a fresh RFP? Time will tell. There certainly must be some lively conversations happening within GSA.

LESSON 2: GSA’s OASIS+ team must be having similar discussions regarding how they will evaluate qualifications of the Protege while at the same time not evaluating MP-JV proposals according to the same standard as “other offerors generally.” It is my opinion that this is one of several issues GSA s Office of Professional Services and Human Capital is working through as they make plans to issue the OASIS+ Final RFP.

LESSON 3: Did the VA TAC make sufficient accommodation in their evaluation of SDVOSB MP-JV’s as part of T4NG2? The RFP instructions required at least one Relevant Project Experience to come from the Protege if the JV did not have four (4) projects. But it appears that MP-JV projects and proposals were evaluated in the same manner as “other offerors generally”. Will SB and/or SDVOSB offerors file post-award protests over this issue? How do these arguments apply to NITAAC’s CIO-SP4 proposal evaluations?

Claim #3: Improperly Excluding Price as an Evaluation Factor at the IDIQ Level

Plaintiff’s third claim is that GSA’s decision not evaluate price at the IDIQ level under the Polaris Solicitations violates federal procurement statute 41 USC  § 3306(c) which requires agencies to “include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals” except “If an executive agency issues a solicitation for one or more contracts for services to be acquired on an hourly rate basis … the contracting officer need not consider price as an evaluation factor for contract award.”

The discussion of this claim was a major part of the decision brief and dealt with the Government’s “broad reading” of 41 USC 3306(c), their use of a Class Deviation to changes within the FAR and a detailed discussion of what makes up a labor hour, a labor hour contract and the implications of FFP and Time and Material task orders and how GSA should “feature” T&M and LH Task Orders.

Some of the key phrases that are cause for applause:

“While this court agrees that agencies have discretion in structuring procurement solicitations, that discretion is not unfettered.”

“...policy arguments do not trump the plain language of the statute.”

“...Defendant [GSA] does not have free rein to disregard statutory requirements and limitations. While the FAR grants agencies broad authority to structure solicitations in the best interest of the agency, the FAR cabins such authority, as it must, within the bounds of the law.”

“Thus, Defendant [GSA] cannot excuse its unreasonable interpretation of Section 3306(c)(3)’s plain language by relying on policy justifications, no matter how significant the procurement.”

GSA lost this argument for two primary reasons:

1. The terms of the Polaris Solicitations state a preference for FFP Performance-based task orders; and
2. FFP task orders are not properly conceived as “based on hourly rates” (a requirement of 3306(c)(3)).

LESSON 1: Be prepared to build-up Labor Category Pricing for OASIS+ based on this protest decision. On May 2^nd at the Coalition for Government Procurement Spring Training Conference, GSA announced that OASIS+ will now include a Price Evaluation and that this is a direct result of this court decision.

LESSON 2: Industry should take note of the Court’s language and use the FAR to our advantage. The Government can largely do what they please and are afforded broad discretion…but only within the bounds of the law and policy decisions and agency priorities do not trump FAR regulations.