Ideally, an agency’s solicitation would provide comprehensive information about its requirements so that interested offerors each had what they needed to craft their best response to the agency’s actual needs. Such a situation would create a level playing field for competition and allow the agency to conduct a meaningful “apples to apples” evaluation to determine which offer would best fulfill those needs. Of course, solicitations sometimes fall short of this ideal. As the recent Government Accountability Office (GAO) decision in ASRC Federal Data Network Technologies, LLC; Ekagra Partners, LLC, B-418085.4; B-418085.5; B-418085.7 (May 5, 2020) reminds us, missing information can give rise to a winning protest.
The protests related to an award under a fair opportunity proposal request (FOPR) issued by the Department of the Army for information technology support services. The FOPR anticipated the award of a hybrid task order with both fixed-price and time-and-material (T&M) elements, under which there was a fixed-price requirement for the support of the agency’s baseline operations in an identified operating environment. Appendix A to the performance work statement (PWS) provided information about the agency’s current operational structure and information technology assets, including data on the center’s 66 buildings, 17 months’ worth of tracking information on the center’s help desk tickets, and information on the center’s information technology environments, software platforms, software applications, and hardware equipment.
The FOPR provided for a best-value tradeoff evaluation based on three factors: technical expertise, management approach, and cost/price. For the technical expertise factor, which was significantly more important that the other two, the agency would evaluate how well each proposal “demonstrates the offeror’s knowledge, understanding, and capabilities to satisfy the government’s requirement without causing disruption in schedule, increased costs, degradation of performance, the need for increased government oversight, or an increased likelihood of unsuccessful contract performance.” With respect to the management approach factor, the solicitation contemplated the evaluation of, among other things, the feasibility and benefit of the offeror’s management methodology, its staffing approach, its plan for managing both the fixed-price and T&M portions of the effort, and the appropriateness of the offeror’s labor-hour skill mix, among other elements.
After a protest of the initial award by ASRC Federal Data Network Technologies, LLC (ASRC) and Ekagra Partners, LLC (Ekagra), the Army took corrective action by entering into discussions with all offerors, soliciting revised proposals, and making a new selection decision. Subsequently, in addition to providing Interchange Notices and answering offerors’ questions about them, the agency issued a fourth amendment to the solicitation, which provided offerors with a “notional labor mix,” containing the agency’s estimate of the overall fixed-price and T&M portions of the effort broken down by labor category. The notional labor mix included the hours and full-time equivalents (FTEs) estimated for each labor category but did not map labor categories to specific PWS tasks or subtasks.
Both ASRC and Ekagra protested these revised solicitation terms, arguing, among other things, that the FOPR, the PWS (including Appendix A), and the notional labor mix did not provide enough information for offerors to adequately understand the required level of effort, and the apportionment of that effort between fixed-price and T&M areas. More particularly, while the FOPR required offerors to trace labor category and hour information to PWS tasks and subtasks within their management plans, its descriptions of those tasks and subtasks did not indicate which portion would be fixed-price and which would be T&M. Instead, the PWS included a general explanation:
All [fixed price] requirements … are in support of the operating environment outlined within Appendix A. These requirements, will be applied to the [ ] operating environment of Appendix A, or replacement systems, including additive or supplemental devices and systems to support the [agency’s] mission and customer base, and are considered baseline support. Above-baseline support is outlined as T&M requirements; Technical Direction Letters (TDLs) will be utilized [in the future] to provide instruction to the contractor as T&M requirements are defined.
ASRC and Ekagra both argued that the solicitation did not provide enough information for offerors to propose staffing for the fixed-price portion of the PWS, because the solicitation and PWS documents did not adequately delineate or define the fixed-price efforts relative to the T&M efforts. Both also challenged the Army’s explanation of the fixed-price efforts during discussions, when the Army told both protesters that their labor approaches were deficient with respect to the overall total labor required to meet the fixed-price requirements and in multiple specific labor categories. According to the protesters, the agency’s position reflected an expectation that offerors would propose fixed-price staffing beyond the current level of operations, based on amorphous concepts such as changes in the technical landscape, or changes to emerging/evolving mission requirements. The agency, however, refused to define these terms and did not provide any meaningful indication of the level of effort associated with these requirements.
In response, the agency argued that the solicitation’s Appendix A sufficiently set out the technical landscapes for the baseline level of operations so that an experienced information technology offeror could estimate the level of effort needed to meet the agency’s emerging/evolving requirements, organizational transformation objectives, and other expected changes. In the agency’s view, this information was sufficient because an agency is not obligated to eliminate all performance uncertainties.
It is true that GAO decisions do not require agency solicitations to be drafted so as to eliminate all performance uncertainties and instead hold offerors responsible, in submitting a proposal on a fixed-price contract, to project costs and to include in their proposed fixed prices a factor covering any projected increase in costs. According to the GAO, risk is inherent in most types of contracts and offerors are expected to allow for that risk in computing their offers. However, the GAO has been equally clear that a contracting agency must provide offerors with sufficient detail in a solicitation to enable them to compete intelligently and on a relatively equal basis. In this regard, the agency’s description of its needs must be free from ambiguity and describe the agency’s minimum needs accurately.
Here, the GAO held that the agency had not provided enough information for offerors to understand adequately the scope of the fixed-price portion of the instant requirement relative to the T&M portion. While explaining that the T&M work involves elements beyond maintaining the current level of operations and providing the total combined staffing associated with these elements (41 FTEs), it has not defined or provided enough detail about them to enable offerors to account for these elements in their proposed staffing. The GAO notes that this is particularly problematic where, as here, the solicitation required offerors to identify their staffing for distinct tasks and subtasks.
Even when pressed by the GAO during the protest, the Army was unable to provide a concrete delineation of the scope of those emerging/evolving mission requirements included within the fixed-price portion of the requirement and instead relied on a very broad explanation stating that an emerging or evolving requirement would fall under the fixed-price portion of the task order if, in the agency’s assessment, the change was the type of change that could be accounted for within the agency’s existing capabilities and an emerging and evolving requirement would fall under the T&M portion of the task order if, in the agency’s estimation, it was “different than all the other services that we’re currently supporting so it’s not just something where we can shift and adjust and adapt.” The agency was also unable to provide a clear breakdown of what constitutes an emerging/evolving mission requirement and how such requirements would affect particular PWS tasks and subtasks. The GAO concluded, “Given the seemingly unbounded and amorphous scope of what constitutes a fixed-price change to the agency’s mission requirements relative to a T&M change, we agree with the protesters that the agency has not provided enough information for offerors to propose staffing intelligently. … [A]n offeror trying to propose task- or subtask-specific staffing would not know, with any level of meaningful detail, which types of mission requirement changes the agency was anticipating, what those changes might entail, and whether they would qualify as ‘baseline’ changes (and therefore have to be staffed under the fixed-price portion of the requirement).”
These same problems exist for the other fixed-price elements at issue. The GAO was not persuaded that, even armed with this knowledge and expertise, an offeror would have a sufficient understanding of the requirements at issue. Because the agency failed to meaningfully explain the relevant terms or define their boundaries, the offerors were left to speculate at the possible scope of these requirements. According to the GAO, the lack of detail meant offerors were not provided with a common basis to compete. The GAO sustained the protests on this basis.
Contractors faced with a solicitation that seems to be missing key information necessary to proposal preparation should carefully consider their situation in light of this decision to determine whether a protest of the solicitation terms is in order. If meaningful competition cannot be had, a valid protest ground exists.
