Beyond their immediate purpose of resolving procurement disputes, bid protest decisions of the Government Accountability Office (GAO) and the U.S. Court of Federal Claims are valuable in two other ways. First, these rulings provide contractors and contracting agencies with guidance on the legal issues, both procedural and substantive, that determine if a protest is granted or denied. Second, sometimes protest decisions also offer helpful insights into how agencies evaluate contract proposals and what distinguishes a successful proposal from an unsuccessful proposal. The recent protest decision by the GAO in Tygrove Technologies, RLLP, B-422448, June 24, 2024, 2024 CPD ¶ 156 falls into this second category, presenting a useful analysis of why the protester’s proposal was deemed deficient by the agency.
This ruling offers lessons for contractors seeking insight into the competition for government contracts. Those pursuing these opportunities should pay close attention here to the reasons behind the rejection, especially if proposing as a joint venture.
Nature of Protest
In this matter, Tygrove Technologies, RLLP brought a protest contesting the exclusion of its proposal from the first phase of a task order competition. Tygrove is an 8(a) small business mentor-protégé joint venture composed of Inserso Corporation, the large business mentor, which was also the incumbent contractor; and Potomac Haven Inc., the 8(a) small business protégé and managing member.
Tygrove protested the award of a task order to another contractor in response to a task order request for proposals (RFP) issued by the General Services Administration (GSA) under an indefinite-delivery, indefinite-quantity, governmentwide acquisition contract. The agency sought proposals for information technology support services for the Air Force Civil Engineer Center. Tygrove was eliminated in phase 1 of the competition and primarily challenged the evaluation of its proposal under the past performance, relevant experience and team structure factor.
The RFP contemplated issuing a single, primarily fixed-price task order “to the offeror whose proposal is the most advantageous to the government” based on a two-phase evaluation process. In phase 1 the GSA considered the most important non-price evaluation factor, i.e., the past performance, experience and team structure factor. The RFP instructed offerors to submit past performance/relevant experience examples and describe the team structure. In phase 2, the agency evaluated price and three non-price factors: qualifications of key personnel; staffing and compensation plan; and management capability.
Overall, the RFP emphasized that the evaluation would consider: the offeror’s understanding of the government requirements; the quality of the proposed services; the likelihood of the offeror successfully performing the task order; and price. The RFP also stressed that the evaluation would include an assessment of the risk associated with the offeror’s proposal as it relates to each evaluation factor.
Following receipt of proposals, the GSA conducted the phase 1 evaluation and identified three proposals that it found clearly distinguished themselves to advance to phase 2. Those three proposals were the only ones to each receive an adjectival rating of very good and a risk rating of low. The agency assigned an adjectival rating of marginal and a high risk rating to Tygrove’s proposal. Tygrove did not advance to phase 2 of the competition. The protest ensued.
Tygrove challenged virtually every aspect of the phase 1 evaluation of its proposal. Its protest included contentions that the agency failed to follow the evaluation criteria and U.S. Small Business Administration (SBA) regulations in determining that Tygrove was not in the top tier of proposals.
Decision by GAO
In considering whether the GSA improperly evaluated the Tygrove proposal, the GAO first noted that the RFP required offerors to submit information addressing both past performance/relevant experience and team structure, and provided that the agency would consider, among other things, the offeror’s understanding of the requirements, the likelihood of the offeror successfully performing the task order and an assessment of risk. Specifically, the evaluation would examine relevance, defined as relating the examples “to the required tasks as well as to the work planned to be performed by each team entity,” in addition to evaluating the “suitability” of the team structure to the requirements.
The GAO further noted that in evaluating the Tygrove proposal, the agency found the protester did not provide compelling or applicable examples to demonstrate that it (and not just Inserso) could perform the work successfully and that this omission presented a significant risk to contractor performance. The GSA considered that SBA regulations require the government to evaluate the joint venture itself as well as the individual partners and found that only Inserso had demonstrated the capability to perform the work successfully. Potomac Haven was not found capable of assuming 40% of this work as required by SBA regulations. Further, the agency noted it is also not at all clear how the 8(a) partner would serve effectively as the managing partner of the joint venture given that Tygrove proposed Potomac Haven to be responsible for only a limited number (the actual number was redacted) of the individual task requirements.
For the second assessed risk, the GAO observed the agency expressed similar concerns where it found that Tygrove’s team structure presented a significant proposal risk because, in addition to the apprehensions associated with the first assessed risk, there was very low blending within tasks that conveys low value placed on collaboration and new idea exchange both within the task and overall. Specifically, the GSA observed that Tygrove proposed Inserso to perform the predominance of the work in each task area with Potomac Haven performing only a small percentage of the work.
In other words, the GAO recited, as the record showed and the contracting officer explained, Tygrove’s proposed team structure indicated that Inserso, the large business mentor, would be performing the vast majority of the work. The contracting officer further explained that this significant imbalance of work performance raised concerns for the agency and prompted consultations with various other government personnel, including those advising on small business issues from the GSA and SBA. According to the contracting officer:
Based on [examples in the proposal] and evaluators’ personal experience, it was clear that Inserso could continue to provide these services effectively. However, Inserso did not (could not) submit the proposal, Tygrove did. While Inserso can undoubtedly perform the work, the [Technical Evaluation Team] found no evidence that Tygrove can perform given its chosen past performance examples, poorly blended team, and the [labor] workshare proposed.
The parties agreed that Tygrove submitted a range of past performance/relevant experience examples and that the agency considered the work done and qualifications by each partner to the joint venture and the joint venture itself. The disagreement related to the GSA’s evaluation of risk in Tygrove’s proposal—including the agency’s noted concern that Potomac Haven did not demonstrate the ability to assume 40% of this work. Tygrove argued the agency was not permitted to consider the 40% workshare requirement under SBA regulations in evaluating its proposal.
The GAO said there is nothing in the SBA regulations that prevented the GSA from exercising its discretion to take into account the reality of the 40% workshare that a small business protégé in a joint venture is expected to meet. Under these circumstances, Tygrove’s proposed past performance, relevant experience and team structure—with performance by its small business protégé proposed for only a small percentage of the work—logically raised concerns for the agency.
In support of its proposal, Tygrove further argued that it intended to transition employees to Potomac Haven over time to comply with mentor protégé joint venture work performance requirements. Citing parts of its proposal that were submitted for phase 2 of the competition, and were not evaluated in phase 1, Tygrove argued that it intended to meet the 40% workshare requirement. It complained that it had a plan for increasing Potomac Haven’s percentage of work and had the RFP placed offerors on notice of this evaluation requirement, Tygrove could have provided detailed information about its plans to ensure that Potomac Haven would successfully perform its 40% workshare.
The GAO rejected this argument, finding that the GSA did consider whether Tygrove intended to expand the participation of its small business members. But the proposal did not evidence such an approach. The contracting officer explained that the evaluators saw no evidence of a plan to grow Potomac Haven’s role to meet the 40% requirement during the period of performance. To the contrary, the evaluators found that the past performance/relevant experience examples provided did not demonstrate that Potomac Haven could scale up to 40%, nor did Tygrove’s proposal make any mention at all of whether or how it would accomplish this, which suggested to the agency there was no plan to offer Potomac Haven any substantive experience at all.
On this record, the GAO concluded that Tygrove did not establish that the agency’s evaluation was unreasonable or violated applicable procurement law and regulations. It found that Tygrove’s proposal in phase 1 was not one of the most highly rated proposals and that there was no basis to reject the agency’s assessment. The protest was denied.
Lessons for Proposal Preparation
Based on the published decision, two lessons in proposal preparation emerge from the GSA’s evaluation of Tygrove’s task order proposal. The narrow lesson is that in offering to provide services to an agency, a mentor-protégé joint venture must ensure the proposal demonstrates that both the mentor and the protégé are capable of performing the work and that the protégé will deliver at least 40% of the labor. The failure to do so is especially glaring when the protégé is supposed to serve as the managing partner of the joint venture. A plan to expand the protégé’s role should be disclosed when discussing team structure.
The broader lesson applies to contract or task order proposals in general. Contractors should effectively establish their capabilities by utilizing compelling or applicable examples of their work. Partnerships should highlight their ability to collaborate and exchange new ideas when submitting a common proposal. Any anticipated changes in the performance of the work to better align with the objectives of the procurement should be clearly described before that element of the proposal is evaluated by the agency. Nothing seems to be gained by reserving potentially persuasive information for later disclosure in the competition.
