“DIGEST – Protest of award of five indefinite-delivery, indefinite-quantity contracts for business process operations across the entire life cycle of student loan financing is dismissed as untimely where the agency established common pricing consistent with the terms of the solicitation, and where the solicitation stated that contracts would be offered to the next highest‑ranked proposals if any offeror, like the protester, rejected its award.”
“BACKGROUND – On January 15, 2019, the agency issued the RFP using Federal Acquisition Regulation (FAR) part 15 procedures to award multiple IDIQ contracts, each comprised of a 3-year base ordering period and a 3-year option ordering period. Agency Report (AR), Tab C, RFP at 1, 3. The contracts will provide for the issuance of fixed-price task orders. Id. at 3. The maximum ordering value for the contracts is $1.7 billion, and the minimum guaranteed value for each contract is $1.5 million. Id. The purpose of the contracts is to provide a more efficient and effective customer experience to students, parents, and borrowers seeking student financing information and services, from loan application through servicing and recovery. Id. at 4. The RFP explains that FSA’s lending portfolio includes $1.4 trillion in outstanding loans, which is growing at seven percent per year, driven by nearly $100 billion in annual disbursements across more than 17 million annual loan originations. Id.
The solicitation advised that proposals would be evaluated on the basis of the following factors: (1) technical approach, (2) past performance, (3) small business participation, and (4) price. Id. at 75-78. For purposes of award, the non-price factors, when combined, are “significantly more important” than price, and past performance is significantly more important in the tradeoff assessment, followed by technical approach, and then small business participation. Id. at 74. The RFP stated that by submitting a proposal, an offeror acceded to all solicitation requirements, including terms and conditions. Id.
As relevant here, the RFP required offerors to propose pricing consistent with the pricing template provided with the RFP, and to set forth assumptions made for all operating elements, sub-elements, and pricing methodologies. Id. at 3, 67. The template required that offerors propose prices for contact center support and back office processing, and included task descriptions for those services. RFP attach. 18, Pricing Template, Proposal Pricing Tab; id., Task Descriptions Tab.
For the contact center support pricing, the pricing template stated: “Offerors shall provide pricing for Inbound/Outbound calls on both a per task and per second basis. FSA will select the preferred billing methodology….”
“DISCUSSION – The protester contends that the terms of the offered contract differ so materially from the RFP that the agency was required to issue an amendment to the solicitation and provide offerors an opportunity to submit revised proposals. The protester further contends that the agency failed to conduct a price realism analysis as required by the RFP, and that the common pricing established by the agency is unrealistically low. For the reasons discussed below, we conclude that the protester’s challenges to the awarded contracts constitute untimely challenges to the terms of the solicitation, and dismiss the protest.
As an initial matter, the agency argues Navient is not an interested party because it was an awardee that chose to reject the offered contract, and thus does not have standing to bring its protest because it cannot demonstrate competitive prejudice. Req. for Dismissal at 5-7; Memorandum of Law (MOL) at 6-10. Specifically, the agency argues that to establish competitive prejudice, a protester must show that but for the agency’s actions it would have received award, a showing that Navient cannot make. MOL at 6-10. The agency also argues that Navient’s rejection of the contract may even constitute a written withdrawal of its proposal in accordance with FAR 15.208(e). Id. at 8 n.5. Based upon the facts presented here, we disagree. …Here, the protester contends that the contract it was offered and the five awarded contracts differ materially from the terms of the solicitation, and that the agency failed to amend the RFP in violation of FAR 15.206(a). Protest at 1-2, 16-21. If our Office were to sustain the protest on this basis, we would likely recommend that the agency issue an amendment to the RFP, accept and evaluate revised proposals, and make a new award decision. Since Navient would be in a position to submit a revised proposal, we find that the protester has a sufficient economic interest to qualify as an interested party eligible to challenge the contract awards.
Requirement to Amend the RFP
The protester argues that the offered contract differs materially from the RFP and imposes unreasonable requirements beyond the agency’s minimum needs. Specifically, Navient argues that the terms for pricing and task duration were changed by the agency’s removal of the volume assumptions included in the RFP, and also by the requirements that common pricing be fixed regardless of task duration and the contractor ensure staffing levels consistently meet or exceed the common performance standards. Protest at 16-18; Comments at 13-20. Navient further argues that these requirements exceed the agency’s minimum needs because actual task durations and volumes may be significantly higher or lower than the RFP’s assumptions, which unreasonably shifts financial risk to the contractor. Id. at 18-20; Comments at 20-23…”
“DECISION – Navient Solutions, LLC, of Wilmington, Delaware, protests the award of multiple indefinite-delivery, indefinite-quantity (IDIQ) contracts to Edfinancial Services, LLC; F.H. Cann & Associates LLC; MAXIMUS Federal Services Inc.; Missouri Higher Education Loan Authority (MOHELA); and Texas Guaranteed Student Loan Corporation (Trellis), pursuant to request for proposals (RFP) No. 91003119R0008, issued by the Department of Education, Office of Federal Student Aid (FSA), for contact center operations and back-office processing activities encompassing the entire student aid life cycle. The protester contends that the contract offered by the agency contained terms and conditions that are materially different from the RFP and that exceed the agency’s minimum requirements such that the agency was required to issue an RFP amendment. The protester also contends that the agency failed to perform a price realism analysis, and that the common pricing established by the agency is unrealistically low.
We dismiss the protest.”