After a successful challenge last year to the award of a service-disabled veteran-owned small business (SDVOSB) set aside task order for technology service desk operations by the U.S. Customs and Border Protection (CBP or the Agency), our government contracts team successfully defended the award of that task order after the re-evaluation to our client, Patriot, LLC. The challenge and subsequent successful defense of the award highlight the usefulness of the protest process, a process some contractors are hesitant to use.

CBP initially awarded the task order, issued under the Chief Information Officer-Solutions and Partners 3 (CIO-SP3) indefinite delivery indefinite quantity (IDIQ) Government-Wide Acquisition Contract (GWAC), to Candor Solutions, LLC in April 2020.  Patriot protested the award to Candor on April 16, 2020, and less than two weeks later the Agency took corrective action.

Candor’s September 2020 Protest

In September 2020, after re-evaluation, CBP awarded the task order to Patriot.  Candor protested, alleging the agency:

  1. Used a facially unreasonable adjectival rating scheme.
  2. Unreasonably deviated from the rating scheme.
  3. Unreasonably evaluated Candor’s proposal.
  4. Did not evaluate Patriot’s proposal in accordance with the solicitation.

Claims of Facially Unreasonable Adjectival Rating Scheme

First, Candor alleged the Agency’s internal adjectival rating scheme, which was not provided to offerors in the solicitation, was facially unreasonable because its definitions prevented offerors from receiving a rating higher than “Good” without significant strengths while guaranteeing a “Superior” rating with significant strengths.  The Government Accountability Office (GAO) denied this protest ground, finding that evaluation ratings not provided in the solicitation are internal agency documents, which fail to provide independent grounds of protest.  In addition, the record demonstrated that the agency did not mechanically apply its adjectival ratings to offerors, reasonably considering and documenting the underlying reasons for assigning adjectival ratings.  For example, under a rating where Candor received one significant strength, several strengths, and two weaknesses, the agency assigned a Good rating, not Superior, based on a consideration of its weaknesses and underlying rationale.

Claims of Deviation from Rating Scheme

Second, Candor alleged it deserved numerous additional strengths under its non-price factors.  In response, CBP noted those strengths were not warranted because Candor’s proposal failed to explain why those features deserved strengths.  Candor failed to refute the Agency’s explanations and the GAO found the Agency’s decision not to assign strengths to be reasonable.  Candor also raised untimely protest grounds alleging additional strengths were warranted for certain key personnel and asserted it should have received strengths where the record demonstrated the agency did award strengths.  Further, Candor claimed CBP’s reevaluation resulted in the improper removal of a strength, but again Candor failed to refute the Agency’s explanation that the reevaluation determined the feature did not exceed any specific requirement to merit a strength.  The GAO found CBP’s explanation reasonable, noting that the fact that a reevaluation results in different findings and conclusions does not, by itself, constitute evidence that the reevaluation was unreasonable.

Claims of Unreasonable Evaluation of Proposal

Third, Candor alleged the agency’s findings of inconsistencies in its past performance examples were the result of the agency’s failure to reasonably read Candor’s proposal as a whole.  For example, one past performance reference referenced providing 8,500 tickets per month, but later stated that there were 200,000 tickets per year, which the agency found inconsistent as 8,500 tickets per month would calculate to approximately 102,000 tickets per year.  The GAO found that agency’s conclusion that these statements were inconsistent was unobjectionable.

Claims Proposal Not Evaluated in Accordance with Solicitation

Finally, Candor alleged that because Patriot reduced its price in its final proposal revision in response to the corrective action, that it must have negatively impacted Patriot’s technical solution.  The GAO dismissed this protest ground because Candor essentially argued the agency was required to perform a price realism analysis, which was not contemplated by the solicitation, arguing that the agency failed to analyze whether Patriot’s low price affected its ability to hire and retain personnel.

GAO Decision

After multiple rounds of briefing, on January 19, 2021, the GAO issued a decision denying the protest and finding reasonable the CBP’s determination that Patriot offered a superior solution for the required technology service desk operations services.

Conclusion

While contractors are sometimes skeptical of the value of the protest process, believing that a successful protest will simply result in the agency strengthening its initial award decision, Patriot’s protest of the award to Candor and intervention in Candor’s subsequent protest of the award to Patriot after re-evaluation demonstrates that, on occasion, protestors win both the battle and the war.

If you have any questions about protesting or defending contract awards, please contact Richard Arnholt, a member in our Government Contracts Practice who has extensive experience with bid protests before the GAO and the Court of Federal Claims, as well as agency-level bid protests and size protests before the Small Business Administration.