Government Contracts Legal Round-Up | 2022 Issue 11 – Government Contracts, Procurement & PPP

Welcome to Jenner & Block’s Government Contracts Legal
Round-Up, a biweekly update on important government contracts
developments. This update offers brief summaries of key
developments for government contracts legal, compliance,
contracting, and business executives. Please contact any of the
professionals at the bottom of the update for further information
on any of these topics.

Protest Cases

1. IAP Worldwide Services, Inc. v. United
States, No. 21-1570 (Fed. Cl. May 25, 2022)

• In what may prove among the most significant Court of Federal
  Claims bid protest opinions of 2022, Judge Solomson provides a
  thorough explanation of the various remedies available at the
  Court.




• In a prior decision as part of the same protest, the court
  found that the Army failed to comply with a DoD FAR Supplement
  (DFARS) provision requiring that DoD “should” open
  discussions before awarding contracts valued above $100 million.
  Although the court found that the protester established prejudicial
  error on this point, the court could not determine the appropriate
  nature of relief, if any.




• After supplemental briefing, the court concluded that even
  though the protester could not demonstrate the irreparable harm
  necessary for a permanent injunction, it was nevertheless
  appropriate to remand the procurement back to the Army to comply
  with the DFARS provision in the first instance, whether by further
  explaining its initial decision to forego discussions, or preparing
  a new decision.

This opinion repays careful study. Protest practitioners should
be careful to understand the various remedies available at COFC and
craft their pleadings accordingly.

2. AT&T Mobility LLC, B-420494 (May
10, 2022) (Published May 23, 2022)

• GAO sustained a protest alleging errors in the evaluation of
  both non-price and price factors, as well as the source selection
  decision.




• First, GAO found that under the non-price factors, the agency
  assessed the proposals primarily on an acceptable/unacceptable
  basis without performing the kind of qualitative analysis required
  by the amended solicitation. Specifically, the solicitation
  contained provisions requiring offerors to provide, and the agency
  to assess, detailed narrative descriptions for many of the
  requirements. Instead of assessing these narrative descriptions,
  the agency improperly evaluated offerors on the basis of the
  pass/fail matrix that had been removed as a stand-alone evaluation
  factor.




• Next, GAO determined that the source selection decision was
  flawed because it converted the procurement methodology from best
  value to lowest-priced, technically acceptable. Here, the agency
  did not conduct a price/technical tradeoff because the selection
  authority did not see any discriminators in the protester’s
  proposal “worth considering for a trade-off in value over
  price.” However, GAO found that the record did not show that
  there was any qualitative discussion of the underlying merits of
  the proposals and why they should have been considered technically
  equivalent, and instead the selection authority unreasonably relied
  upon adjectival ratings.




• Finally, GAO held that the price evaluation was flawed because,
  contrary to the solicitation’s express terms, the agency
  excluded pricing for the transition portion of the base year and
  pricing for the optional CLINs from the price calculations used in
  the source selection decision. While as a standalone matter this
  may not have been prejudicial because the protester was still
  higher priced, GAO nonetheless sustained because it could not
  conclude with any certainty that, had the agency evaluated
  proposals consistent with the terms of the solicitation and
  performed a proper tradeoff analysis, that the selection authority
  would have made the same selection decision.

Agencies cannot establish one evaluation scheme yet follow
another. Where debriefing materials indicate that the agency did
not follow its own requirements, this can be a ripe avenue for
protest.

3. Sehlke Consulting, LLC, B-420494 (May
18, 2022) (Published May 25, 2022)

• GAO sustained a protest arguing the awardee’s proposal was
  unacceptable due to the subsequent unavailability of a proposed key
  person.




• The solicitation, issued by the Department of Defense, National
  Reconnaissance Office (NRO), required offerors to provide resumes
  and letters of commitment for four specific key personnel
  positions, including a senior financial consultant.




• In selecting KPMG for award, the selection decision identified
  that “specifically KPMG’s exceptional response to [the]
  most important management factor Key Personnel” warranted the
  associated cost premium.




• The protester alleged that the agency should have evaluated the
  awardee’s proposal as technically unacceptable when, prior to
  completing its evaluation of proposals and making its award
  decision, KPMG advised the agency that its proposed senior
  financial consultant had submitted a formal notice of resignation,
  thus putting the agency on notice that one of the company’s
  proposed key personnel was unavailable to perform the contract as
  proposed.




• In response, NRO claimed that their evaluation was reasonable
  because despite the individual’s pending departure and despite
  the agency’s knowledge of the pending departure, the individual
  technically remained an employee of KPMG’s subcontractor on the
  date the agency executed the source selection decision.




• GAO was not persuaded, finding that the agency could not ignore
  the pending departure of the key person. Unlike other cases, where
  a proposed key person’s unavailability was not sufficiently
  definite, here the fact that the senior financial consultant
  unambiguously resigned to take a position with a different firm
  made it clear that the individual was unavailable. GAO therefore
  determined that it was unreasonable for the agency to base its
  evaluation on the awardee’s offer of a senior financial
  consultant it had no realistic expectation would perform on the
  follow-on contract.

When assessing allegations regarding the unavailability of key
personnel, GAO performs a fact-specific inquiry to determine
whether the individual was actually unavailable and whether the
agency had this knowledge prior to its award decision. GAO
continues to maintain its position that when a key person becomes
unavailable, agencies must either reevaluate proposals without
reliance on this candidate for a required key person position, or
open discussions and solicit revised proposals from all
offerors.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.