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GAO Sustains Protest Where Agency Improperly Credited Awardees for Certifications and Performance of Affiliates

by | May 18, 2020 | Government Contracts

GAO recently sustained a protest that the agency improperly credited awardees for having mandatory certifications, where the certifications provided in the proposals were issued to affiliated entities and not the offeror. In that same procurement, GAO determined that the agency also unreasonably credited one of the awardees with the corporate experience and past performance of its affiliates, even though there was no indication in its proposal that the affiliates would be involved in contract performance. 

In MetroStar Systems, Inc., B-416377.5; B-416377.8 (April 2, 2020), MetroStar protested the award of five IDIQ contracts in support of the Department of Justice’s Information Technology Support Services-5 (ITSS-5) program. Proposals were evaluated in two phases. First, the agency would evaluate technical and price proposals. One of the technical evaluation subfactors was mandatory technical certifications, under which offerors would be evaluated as either “achieved” or “not achieved,” based upon the agency’s assessment of  “whether or not the offeror has the required certification [under International Standards Organization (ISO) 9001], and . . . has either achieved [Capability Maturity Model Integration (CMMI)] Level 2 or 3, OR has a complete, realistic and well-supported plan for achieving CMMI Level 2 or 3 within a reasonable time after award.” This subfactor was essentially a “go/no-go” factor, as a proposal had to satisfy these requirements to move into the second phase of the evaluation. 

Two other technical subfactors included corporate experience and past performance, which were evaluated for merit. Corporate experience was significantly more important than the other technical subfactors. The most highly rated offerors in phase one would be move on to phase two, where their proposals would be evaluated for technical proficiency and responses to sample task orders. 

MetroStar raised a number of challenges to the agency’s evaluation process. MetroStar argued that two of the awardees – SRA and BAH – failed to comply with the solicitation’s ISO 9001 certification requirement. Neither SRA nor BAH included in their proposals a certification of their own quality management system at the time of proposal submission. Instead, each relied on the certifications of affiliated entities. 

The agency argued that the solicitation did not prohibit reliance on the certifications of affiliated entities, and it was therefore reasonable for DOJ to permit their use. GAO disagreed. 

GAO concluded the solicitation required the offeror to be the entity that had the required certification. GAO found that in the Q&A, the agency explained that the offeror, and not a subcontractor, must hold the ISO certification. Additionally, in response to several other questions, the agency confirmed that it would not be acceptable for the offeror to have the certification in progress, and that certification of the prime offeror was required at the time of proposal submission. Because neither BAH nor SRA provided evidence that they had their own ISO 9001 certifications at the time they submitted proposals, GAO held that the agency unreasonably credited the offerors with meeting this solicitation requirement. 

MetroStar also argued that DOJ improperly credited another awardee, CACI, with the corporate experience and past performance of three of its affiliates, even though its proposal not demonstrate any meaningful involvement by two of these affiliates in CACI’s proposed technical approach. GAO noted that while it is appropriate to consider the experience and past performance of affiliates where the affiliate will have meaningful involvement of contract experience, there was nothing in CACI’s proposal that evidenced involvement of two of the three affiliates in this contract effort. Broad references to the “CACI Team” were too vague to demonstrate meaningful involvement of those affiliates. GAO concluded that DOJ’s evaluation of assignment of the affiliates’ experience and past performance to the CACI proposal was unreasonable. 

DOJ argued that GAO should not sustain the protest, because MetroStar could not establish prejudice, arguing that the agency would have just awarded fewer than five IDIQ contracts to those remaining offerors who received an overall rating of very good. GAO disagreed, noting that the solicitation would have required that BAH and SRA be eliminated in the first round of competition for not having the required certification, and CACI would have also been eliminated in round one or had a lower overall rating. Additionally, GAO noted that there was nothing in the record that indicated what the agency would have done if only two or three offerors received an overall rating of very good, and so the agency may have considered making awards to offerors with satisfactory ratings, such as MetroStar.

As this decision demonstrates, it is important for offerors to review the solicitation closely – including responses to the Q&A – and comply with all requirements. 

Stephanie Wilson is a Partner and Co-Director of Government Contracts at Berenzweig Leonard. She can be reached at [email protected].