Update: Decision released in key personnel protest denial of USDA requirement for investigative support services

“DIGEST – Protest that agency unreasonably eliminated quotation from consideration for award because protester proposed the same key personnel in its quotation submitted in response to a related solicitation, for which it received an award, is denied where solicitation for which protester’s quotation was eliminated specifically prohibited vendors from offering the same key personnel under both solicitations.

Access the full 6-page decision here.”

“BACKGROUND – The agency issued RFQ 0042 on June 19, 2020, as a set-aside under the Small Business Administration’s 8(a) business development program for legal investigative services for the Office of the Assistant Secretary for Civil Rights (OASCR).  Resp. to Req. for Documents, Doc. 2, RFQ 0042 at 1, 4.  Specifically, the solicitation sought vendors to review investigative plans, obtain information (including statistics and testimony), update the complaint system, prepare the investigative file, and distribute the review of investigations.  Id. at 4.  On June 18, the agency issued a related solicitation, RFQ No. 12314420Q0049 (RFQ 0049), for support services to review the investigative file, draft the final agency decisions, and prepare complaint status memoranda.  Id., Doc. 6, RFQ 0049 at 1, 4.

RFQ 0042 contemplated a best-value tradeoff basis for award, based on an evaluation of price and the following non-price factors:  technical approach; key personnel; and past performance.  RFQ 0042 at 35.  Relevant to this protest, the solicitation identified two key personnel–the program manager, and the on-site lead equal opportunity specialist–that were “considered essential to the work being performed under this contract.”  Id. at 7.  RFQ 0049 identified the same key personnel categories as required and essential for performance.  RFQ 0049 at 7.  With respect to the key personnel factor, RFQ 0042 stated that the agency would evaluate personnel on the minimum requirements set forth in the solicitation.  RFQ 0042 at 55…”

“DISCUSSION

Attain X protests that the agency improperly eliminated the quotation it submitted in response to RFQ 0042 from consideration for award because AttainX proposed the same key employees for RFQ 0042 and RFQ 0049.  AttainX argues that the agency used undisclosed evaluation criteria to eliminate its quotation because the solicitation did not prohibit vendors from proposing the same employees for both solicitations or require that the key personnel be dedicated full-time to either contract. Protest at 11‑14; Comments at 1.  AttainX argues that performance on one contract would not necessarily render such staff unavailable to perform on the other.  Comments at 1.  AttainX also argues that it was improper for the agency to eliminate its quotation from consideration under RFQ 0042 based on information that was in the quotation it submitted in response to RFQ 0049.  Protest at 14.

The agency responds that once AttainX received the award for RFQ 0049, the key personnel it proposed for both solicitations were no longer available to perform the requirements of RFQ 0042.  Req. for Dismissal at 2.  The agency states that because the agency could not evaluate AttainX’s key personnel under RFQ 0042, since they were unavailable, the AttainX quotation was rendered unacceptable.  Id.

As noted, AttainX argues that the solicitation itself, as initially issued, did not prohibit vendors from proposing the same key personnel for both solicitations.  Amendment 1 to RFQ 0042, however, advised vendors that the same personnel could not be proposed for both solicitations.  AttainX does not dispute that in response to the question of whether it was permissible to specify some of the same personnel for both efforts the agency replied no.  Comments at 5.  Instead, AttainX asserts that this prohibition applied to personnel other than key personnel, especially in light of the fact that the program manager and on-site lead do not have a case load.  Id.  Given that the agency response did not distinguish between key personnel and other personnel we see no support in the record for AttainX’s interpretation.

On July 28, the agency issued amendment No. 1 to RFQ 0042, which responded to vendors’ questions.  Agency Response to GAO Question, Dec. 4, attach. 1, System for Award Management Posting at 4.  The following two questions and responses with respect to RFQ 0042 are relevant to this protest:

Question:  Is there a minimum time requirement for on-site-work for the Program Manager, Lead Person… ?  What percentage of work can be telework?

Response:  On site is required 4 out of 5 days a week…”

“DECISION – AttainX, Inc., a small business of Herndon, Virginia, protests the award of a contract to B&B Solutions, a small business of Washington, D.C., under request for quotations (RFQ) No. 12314420Q0042 (RFQ 0042), which was issued by the United States Department of Agriculture (USDA) for investigative support services.  AttainX complains that its quotation was unreasonably eliminated from the competition because it proposed the same key personnel for RFQ 0042, as well as a separate solicitation for which it received an award.

We deny the protest.”

Access the full 6-page report here.

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