When the Department of Homeland Security tried to migrate its IT support from a single contract to a series of task orders, they created quite the quagmire. From go, DHS’ process for evaluating offerors’ technical capabilities was unusual, and when contracts were awarded, disappointed contractors moved to protest. Yet when it came to light that the agency had altered evaluation documents once protests were underway, GAO swiftly intervened.
It’s unsurprising that multiple offerors who had competed for DHS’s future IT support needs moved to protest. On one hand, the structure of this procurement wasn’t atypical. In fact, it was similar to a many best value procurements in which the evaluation criteria include technical challenge, staffing, past performance, and price. Yet the agency’s process for evaluating technical capabilities was atypically convoluted.
When An Agency Enacts Perplexing Evaluation Methods
DHS required that each offeror participate in a one-day “challenge exercise” in which they were given a sample problem and several hours to strategize an approach to that problem. Then they were to give a 30-minute oral presentation outlining their solution. The presentations were then video recorded for review at a later date by DHS evaluators.
This structure makes sense with a small handful of offerors, but 111 offerors showed up to compete for DHS’ multiple award contract. It took DHS over a month to just conduct the various evaluations before even reviewing the offerors’ 30-minute presentations. Once they finally got through the convoluted process of assessing each offeror, the agency made 13 awards.
Of course, with such a large a number of disappointed offerors and such an involved evaluation process, protests ensued. DHS responded by re-evaluating. Yet after the re-evaluation, there were even fewer awards (11 compared to the previous 13). As a result, 9 disappointed offerors protested to the GAO on the belief they were treated unfairly, and here is when the DHS’ actions started to get questionable.
When Suspicions Arise That Documents Were Altered
Standard procedure outlines that once a protest is filed, an agency has 30 days to take a formal position on the protest (typically that it should be denied), gather the documentation for the award, and share it with GAO, and counsel for the protestors, and intervenors. In this case, when DHS released their documents, more than one of the protestors’ counsel reached out to GAO on suspicions that the agency had altered the paperwork since the award decision.
So GAO contacted DHS asking whether and when the documents had been modified. Shockingly, the agency confirmed that some information had been added or changed after the award, and only then submitted the original, untouched documents to GAO. When GAO compared the original documents to the modified ones, they said substantial changes were made, arousing their suspicions to such a degree that they called for a hearing to review both the altered documents and DHS’ entire evaluation process.
The Legal Precedence for Amending Problematic Solicitations
But before the hearing took place, DHS announced it would terminate all contracts. They said they had realized that their evaluation methodology was flawed and alleged that the solicitation itself did not reflect agency needs. It’s not unusual for an agency to realize mid-procurement that its evaluation process was problematic. In fact, agencies often learn that the solicitation as it was written or the evaluation criteria weren’t right. That’s why there’s an established process for amending faulty solicitations and then allowing all offerors to submit revised proposals. Yet DHS ignored that critical step, presumably in an effort to avoid undergoing another round of time-intensive reviews.
The protestors will likely ask for recovery of their protest costs, a request which will probably be granted by GAO given the history and timing of this case.
Maintaining the Integrity of the Procurement Process
This case shows that GAO will respond assertively to what it perceives to be a threat to the integrity of the procurement process. In this case, that threat came from agency action. But vendor activity can also constitute a threat to a fair procurement in the eyes of the GAO. Vendors need to put in place systems to insure that their actions don’t backfire, and need to act quickly if a threat emerges.
EDC Consulting, LLC, et al., B-41417.10 et al., June 9, 2017
To learn more, listen to my interview with Tom Temin from Federal News Radio‘s “Federal Drive” here.