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B-.2,B-.3,B-.4,B-.5,B-.6, Advanced Software Systems, Inc., January 07, 2019

(AGENPARL) – Washington (DC), mar 12 febbraio 2019

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:  Advanced Software Systems, Inc.

File:  B-.2; B-.3; B-.4; B-.5; B-.6

Date:  January 7, 2019

David S. Cohen, Esq., John J. O’Brien, Esq., and Daniel J. Strouse, Esq., Cordatis
LLP, for the protester.
Damien C. Specht, Esq., James A. Tucker, Esq., and Caitlin A. Crujido, Esq.,
 Morrison & Foerster LLP, for NetCentric Technology, LLC, the intervenor.
Kathleen D. Martin, Esq., Department of State, for the agency.
Alexander O. Levine, Esq., and Jennifer D. Westfall-McGrail, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest challenging the exclusion of protester’s proposal from the competitive range is
denied where the agency reasonably found that the proposal failed to address material
requirements and was therefore technically unacceptable.

Advanced Software Systems, Inc. (ASSYST), a small business located in Sterling,
Virginia, challenges the exclusion of its proposal from the competitive range under request
for proposals (RFP) No. SAQMMA16R0029, issued by the Department of State (DOS) to provide
technology services for software development lifecycle support, information technology
services management (ITSM) and business process improvement for DOS’s Bureau of Consular
Affairs (CA), Office of Consular Systems and Technology (CST).  The protester contends
that the agency unreasonably evaluated its proposal under the RFP’s technical approach,
past performance, management approach, and key personnel evaluation factors.[1]

We deny the protest

BACKGROUND

The solicitation was issued on September 16, 2016, seeking proposals to provide service
transition support services for the software development lifecycle in support of DOS CA/CST
systems, as well as ITSM and business process improvement for CA/CST.  The main
activities for the agency’s requirement encompassed facility and transition management,
independent validation and verification (IV&V) services, quality management, and
configuration management.  Contracting Officer’s Statement (COS) at 2.

The solicitation contemplated issuing a contract with fixed-price and labor-hour line
items, with a base period of approximately 12 months,[2] with four 1-year option periods.  The
RFP anticipated that offerors would be evaluated based on price and five technical factors,
listed in descending order of importance as follows:  technical approach, past
performance, management approach, key personnel, and transition-in plan.  RFP at
70.  When combined, the non-price factors were significantly more important than
price.  Id. at 70.

For the technical approach factor, the solicitation instructed offerors to demonstrate
their technical understanding of each task outlined in the statement of work (SOW) “without
simply repeating the requirements.”  Id.  The RFP anticipated that each
offeror would be evaluated based on its overall technical approach, including its proposed
methodology, its demonstrated understanding of the scope of work and the requirements, and
the technical risk associated with its proposal.  Id.  Offerors were
instructed to structure their proposals to align with the SOW, and to “explain how [they]
will meet the Government’s technical requirements as specified in the SOW tasks.” 
Id.

On March 14, 2017, the agency received timely proposals from seven offerors, including
ASSYST.  The agency evaluated ASSYST’s proposal as follows:

 

Technical Approach

Past Performance

Management Approach

Key Personnel

Transition-In Plan

ASSYST

Unacceptable

Limited Confidence

Marginal

Marginal

Good

Agency Report (AR), Tab 5, Technical Evaluation Team (TET) Consensus Report, 
at 5-6. 

As relevant to this protest, ASSYST’s unacceptable technical approach rating was based
on the agency’s assessment of seven weaknesses, one significant weakness, and three
deficiencies under this factor, as well as no strengths or significant strengths. 
Id. at 21-23. 

On the basis of the above ratings, ASSYST’s proposal received an unacceptable overall
technical acceptability rating.  AR, Tab 6, Competitive Range Determination, at
10.  ASSYST was therefore eliminated from the competitive range along with the
proposals of four other offerors, which similarly were found unacceptable under both the
technical approach factor and overall.  See id. at 9-10.

On September 7, 2018, the agency notified ASSYST that its proposal had been excluded
from the competitive range.  On September 24, the agency provided ASSYST with a
debriefing explaining DOS’s basis for excluding the offeror’s proposal from the competitive
range.  On September 30, the agency announced that it had awarded a contract for the
requirement to NetCentric for $99,374,479.

On October 3, ASSYST filed this protest.

DISCUSSION

ASSYST challenges the evaluation of its proposal under the technical approach, past
performance, management approach, and key personnel factors.[3]  With respect to the technical approach
factor, the protester contends that the agency unreasonably assessed various weaknesses,
deficiencies, and a significant weakness, which were not justified in light of the
evaluation criteria and the content of ASSYST’s proposal.  The protester additionally
argues that the agency evaluated its proposal unequally because it penalized ASSYST for not
providing certain details in its proposal, but did not penalize NetCentric for failing to
provide the same details in its proposal. 

An agency is not required to include a proposal in the competitive range where the
proposal is not among the “most highly rated” proposals.  Federal Acquisition
Regulation § 15.306(c)(1).  The evaluation of proposals and resulting determination as
to whether a particular offer is in the competitive range are matters within the discretion
of the contracting agency.  ECC Renewables, LLC; Pac. Power, LLC, B-
et al., Dec. 18, 2013, 2014 CPD ¶ 9 at 6.  Our review is limited to
whether the agency’s evaluation and competitive range determination were reasonable and
consistent with applicable procurement statutes and regulations.  Straughan Envtl.,
Inc.
, B- et al., Sept.18, 2015, 2015 CPD ¶ 287 at 13.  Further,
it is an offeror’s responsibility to submit an adequately written proposal that
demonstrates the merits of its approach; an offeror runs the risk of having its proposal
downgraded or rejected if the proposal is inadequately written.  ARBEiT, LLC,
B-, Apr. 27, 2015, 2015 CPD ¶ 146 at 4.  

Technical Approach

ASSYST challenges three deficiencies assessed in its proposal under the technical
approach factor.  As discussed below, we find each of the agency’s deficiency findings
to be reasonable. 

DOS assessed the first deficiency under task four (formal IV&V services), noting
that ASSYST’s proposal “does not address dependencies and IV&V priorities.”  AR,
Tab 5, TET Consensus Report, at 22.  Dependencies describe the relationship of
IV&V activities to each other, where the start or end date of one activity depends on
the start or end of another activity.  COS at 35.  Where activities impact one
another’s start dates, end dates, and durations, IV&V priorities describe how these
IV&V activities will be prioritized to develop a comprehensive IV&V test
plan.  See id. at 35-36.  The SOW required that the IV&V test
plan include required test resources, including dependencies, and also noted that the test
plan may “need to address IV&V priority with other ongoing IV&V activities.” 
SOW § 3.4.2.2.  Critical and high priority projects were to receive preference
when multiple IV&V activities require the same limited resources.  Id.
 In reviewing ASSYST’s proposal, the agency concluded that the proposal’s failure to
address these areas created a risk that ASSYST would not be able to adequately schedule
tasks, which could “lead to resources not being available and accountable.”  AR, Tab
5, TET Consensus Report, at 22.

The protester argues that although its proposal did not use the “buzz word
‘dependencies,’” it left little doubt that the test plans it proposed would identify
dependencies, as well as priorities and obstacles to the success of IV&V testing. 
Protest at 24.  In this regard, the protester notes that its proposal stated that its
test plan “addresses staffing of the testing including [DELETED], and prioritization of
competing tasks.”  AR, Tab 3a, ASSYST Technical Proposal, at 1-17.  The protester
contends that the proposal thereby addressed the prioritization of IV&V tasks, which
obviated the concern identified by the agency that resources would not be available and
accountable.   

Based on our review of the record, we conclude that the agency reasonably assigned
ASSYST a deficiency in this area.  In this regard, we note that while ASSYST’s
proposal summarily mentioned the prioritization of competing tasks, it did not discuss
IV&V priorities in relation to other ongoing IV&V activities, and therefore did not
discuss the prioritization of critical and high priority projects when multiple IV&V
activities require the same resources.  These were all areas included in the SOW
section detailing the preparation of the IV&V test plan.  See SOW §
3.4.2.2.  The proposal also did not include any discussion of the protester’s specific
technical approach for addressing such prioritization.  Moreover, the proposal did not
mention dependencies at all.  Thus, the proposal did not demonstrate that ASSYST’s
approach understood and accounted for such dependencies within the IV&V activities,
which would require prioritization of resources in order to ensure the successful
accomplishment of high priority projects.  In light of the protester’s failure to
address its approach to meeting these SOW requirements, we find the agency’s assessment of
a deficiency to be reasonable.

The protester additionally challenges a deficiency assigned to its proposal by DOS under
tasks four (formal IV&V services) and seven (user acceptance testing (UAT) services)
for failing “to address mobile testing, as well as submissions to the [Configuration
Management (CM)] repository,” and configuring and setting up systems within 24 hours of the
UAT schedule start.  AR, Tab 5, TET Consensus Report, at 22; see also
COS at 38.  In assessing this deficiency, the TET explained that if the agency “can’t
test mobile services, it can’t provide [these mobile services] to our customers as CST
cannot deploy untested solutions.”  AR, Tab 5, TET Consensus Report, at 22.  The
protester challenges this conclusion, arguing that, while it did not mention mobile testing
specifically, its strategy was broad enough to encompass such testing.  The protester
further argues that the agency assigned it a deficiency simply for failing “to use the
words ‘including mobile and smart devices’ in its discussion of Tasks 4 and 7.” 
Protest at 25.  In support of this argument, the protester notes that, for another
task (task six), simply using those same words, within a cursory proposal description, was
sufficient to avoid the assignment of a weakness.  Protest at 25.  In the
protester’s view, this undercuts the agency’s representation that the failure to address
mobile testing was important enough to warrant the assessment of a deficiency, as ASSYST’s
bare mention of mobile testing elsewhere was enough to avoid being assessed any weakness at
all.  The protester additionally contends that providing more detail regarding mobile
testing would not have been possible given the limited information provided in the
solicitation and the SOW.

Based on our review, we find that the agency reasonably determined that ASSYST’s
proposal failed to address mobile testing within its technical approach for tasks four and
seven.  In this regard, we note that the SOW required the contractor to utilize mobile
and smart device testing solutions and analysis as part of its execution of IV&V
testing, and similarly stated that the contractor should prepare the UAT environment by
“incorporat[ing] mobile and smart devices into test solutions and analysis, as
necessary.”  SOW §§ 3.4.1 and 3.7.2.2.  Despite this requirement, ASSYST’s
proposal did not mention mobile testing in either of the proposal sections corresponding to
these SOW sections.  See AR, Tab 3a, ASSYST Technical Proposal, at and

While the protester contends that its general discussion of IV&V testing “was broad
enough to encompass this form of testing,” Protest at 25, we find nothing unreasonable
about the agency’s faulting of ASSYST’s proposal for failing to specifically address this
requirement.  As previously noted, it was the protester’s responsibility to submit an
adequately written proposal that demonstrated the merits of its approach, and by failing to
do so, it ran the risk of having its proposal downgraded or rejected.  ARBEiT,
LLC
, supra.  Here, ASSYST did not address mobile testing, despite the above
SOW requirements, an omission that creates uncertainty about whether mobile testing would
be covered under its approach.  As the contracting officer noted in response to this
protest ground, mobile application testing is “uniquely different from non-mobile
application testing since the platform itself is different,” COS at 37; thus, the
protester’s broad discussion of testing does not necessarily encompass mobile application
testing as the framework for the latter testing is uniquely different.  Nor was the
agency required to assume that such mobile application testing was encompassed within
ASSYST’s broad testing approach.

Additionally, although the protester is correct that the agency did not assess a
weakness for a different task (task six), where the protester merely referenced
incorporating mobile and smart device environments in its approach to that task, this
circumstance did not compel the agency to overlook ASSYST’s failure to mention mobile
application testing within tasks four and seven.  For the latter SOW requirements,
ASSYST did not reference mobile application testing at all, briefly or otherwise, thus
creating an open question as to whether such applications would be part of ASSYST’s
technical approach for these tasks.[4]  

The protester further challenges this deficiency, arguing that its assessment is
evidence of unequal treatment.  In this regard, the protester contends that DOS did
not assess a weakness or deficiency in NetCentric’s proposal despite the proposal’s
omission of many of the same details the agency faulted ASSYST’s proposal for not
including.  For example, the protester contends that NetCentric’s proposal did not
address the requirement to configure and set up systems using artifacts provided by CM
within 24 hours, and also did not address any of the “unique security concerns” the agency
represented were an important rationale for addressing mobile application testing. 
Third Supp. Protest at 5.

It is a fundamental principle of federal procurement law that a contracting agency must
treat all offerors equally and evaluate their proposals evenhandedly against the
solicitation’s requirements and evaluation criteria.  LASEOD Grp., LLC,
B-, Jan. 10, 2012, 2012 CPD ¶ 45 at 4.  Where a protester alleges unequal
treatment in a technical evaluation, it must show that the differences in ratings did not
stem from differences between the offerors’ proposals.  Abacus Tech. Corp.; SMS
Data Prods. Grp., Inc.
, B- et al., Oct. 28, 2016, 2016 CPD ¶ 317 at
11.

Based on our review of the record, we see no basis to conclude that the differences in
the evaluation findings resulted from unequal treatment rather than from differences in the
respective proposals.  In this regard, we note that, NetCentric’s proposal, unlike
ASSYST’s proposal, expressly stated that the offeror would “incorporate mobile and smart
devices, as well as applicable peripheral devices, into test solutions and analysis, as
needed.”  AR, Tab 11, NetCentric Technical Proposal, at 1-31.  Similarly,
NetCentric’s proposal stated that the company would “[p]repare and maintain a
production-like test environment using 100 percent CM-baselined artifacts by one day prior
to the UAT.”  Id.[5]  Accordingly, NetCentric’s proposal,
unlike ASSYST’s proposal, expressly addressed mobile testing, as well as setting up a test
environment using CM-baselined artifacts within one day.

The protester also challenges the third deficiency, which was assessed for failing to
address various SOW requirements relating to ITSM availability, specifically the
requirements:  (1) to ensure ITSM availability at a minimum of 98 percent, (2) to
ensure that the ITSM system incident response time impacting user service resolutions is no
more than eight business hours, and (3) to ensure that the ITSM service request response
time is no more than three business days.  See AR, Tab 5, TET Consensus Report,
at 22-23.  In assessing this deficiency, the agency noted that “[i]f ITSM system
availability is not maintained at an acceptable level, incidents and changes in the
environment cannot be properly tracked and documented [and] [m]anagement will be unable to
make informed decisions.”  Id. at 23.

ASSYST argues that its proposal did address these requirements, noting that the
proposal touted ASSYST’s understanding of, and experience in meeting, ITSM high
availability requirements.  For example, the proposal stated that ASSYST had “the
engineering capability and detailed knowledge that supports the high availability
requirements because we understand [DELETED].”  AR, Tab 3a, ASSYST Technical Proposal,
at 1-36.  The protester further contends that its proposal committed it to meeting the
ITSM requirements by stating that ASSYST has “the necessary skills, experience, and
knowledge to provide CST with a very high level of required [operations and maintenance]
service for ITSM, including meeting all [service level agreement] and system availability
targets.”  Id. at .

Based on our review, we find the agency’s assessment of this deficiency to be
reasonable.  The solicitation advised offerors that their proposals would be evaluated
on their technical approach, including their proposed methodology, and therefore it asked
each offeror to “explain how it will meet the Government’s technical requirements as
specified in the SOW tasks.”  RFP at 70.  While ASSYST’s proposal did contain
some discussion of its experience meeting high availability requirements, it did not detail
the offeror’s technical approach to meeting the ITSM requirements at issue.  That is,
ASSYST’s proposal discussed its knowledge of, and experience in meeting, ITSM requirements
and also generally committed to meeting all service level agreement and system availability
targets, but did not contain a technical approach to actually meeting these requirements.
 In light of this omission, we find that the agency reasonably found a deficiency
based on the proposal’s failure to meet a material requirement.

Prejudice

The protester additionally challenges numerous other aspects of the agency’s evaluation,
including the evaluation of ASSYST’s technical approach, past performance, management
approach, and key personnel.  The protester also asserts that the agency evaluated
proposals unequally by assigning weaknesses, including a significant weakness, to ASSYST’s
proposal, but not to the proposal of NetCentric, the eventual awardee.  We find,
however, that the protester has failed to demonstrate it was prejudiced by these alleged
errors.  

In this respect, competitive prejudice is an essential element of a viable protest;
where the protester fails to demonstrate that, but for the agency’s actions, it would have
had a substantial chance of receiving the award, there is no basis for finding prejudice,
and our Office will not sustain the protest, even if errors in the procurement are found.
 HP Enter. Servs., LLC, B-, B-.2, June 16, 2015, 2015 CPD ¶ 202 at
6. Where, as here, the protester challenges the exclusion of its proposal from the
competitive range, the protester must demonstrate that, but for the alleged errors, its
proposal would have been included in the competitive range.  See 22nd
Century Techs., Inc.
, B-, B-.2, Sept. 2, 2016, 2016 CPD ¶ 306 at
10. 

The protester argues that the above alleged errors caused it prejudice because, but for
such errors, the agency would have rated its proposal higher, and therefore might have
included it within the competitive range.  In support of this point, the protester
argues that nothing in the solicitation required a proposal with deficiencies to be found
technically unacceptable or to be excluded from the competitive range. 

Based on our review of the record, we find no reasonable possibility of prejudice. 
In this regard, we note that the agency excluded all technically unacceptable proposals
from the competitive range, stating that such proposals “failed to meet . . . all the
mandatory technical requirements set forth in the solicitation. . . [and] these offerors’
proposals were not sufficient enough to be considered acceptable proposals.”  AR,
Tab 6, Competitive Range Determination, at 41.  This rationale would remain
unaffected, even if we were to credit the protester’s remaining challenges to various
weaknesses (including a significant weakness) assessed in its proposal. 

As noted above, the agency reasonably assessed three deficiencies in ASSYST’s proposal
under the technical approach factor.  A deficiency was defined under the source
selection plan as “a material failure of a solution to meet a Government requirement or a
combination of weaknesses (a flaw that appreciably increases the risk of unsuccessful task
performance) in a solution that increases the risk of unsuccessful task performance to an
unacceptable level.”  AR, Tab 1, Source Selection Plan, at 24.  The presence
of these deficiencies therefore means that the agency would still consider the protester’s
proposal to have materially failed to meet requirements and/or contain flaws that increase
the risk of performance to an unacceptable level, even if ASSYST’s proposal did not have
any of the other weaknesses being challenged by the protester.  Based on this
assessment, as well as the agency’s uniform elimination of technically unacceptable
proposals from the competitive range, we see no reasonable possibility that ASSYST’s
proposal would have been included in the competitive range, even if the protester were
successful in its remaining protest challenges.

The protest is denied.

Thomas H. Armstrong
General Counsel

Fonte/Source: https://www.gao.gov/products/B-414892.2,B-414892.3,B-414892.4,B-414892.5,B-414892.6?source=ra

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