On August 3, 2020, GAO handed down a remarkably rare sustain on a protester’s challenge to the scope of corrective action. In that decision, Peraton Inc., B-416916.8, et al., Aug. 3, 2020, 2020 CPD ¶ __, GAO sustained a protest because the agency’s scope of corrective action was unreasonably narrow. This decision is instructive to contractors because the grounds arose during discussions arising out of a subsequent round of corrective action. It shows that a contractor who pays close attention at all stages of the procurement process will be rewarded, and that corrective action may not always be what it seems.
This Peraton decision is the latest in a long line of protests challenging an award for the Department of State’s (DOS) Office of Consular Systems and Technology. An overview of the long, winding path to this most recent decision would be helpful. The DOS’s request for proposals (RFP) was originally issued on January 24, 2018 and contemplated a best-value tradeoff and award between technical, past performance, and price factors. Most relevant here, as part of the technical factor, the offerors were asked to propose a staffing plan and key personnel (along with résumés and commitment letters) who would be evaluated on how well they satisfied the contract requirements.
Peraton protested the initial award decision, claiming that the putative awardee, Vistronix, had an unmitigable OCI. Peraton’s initial protest resulted in corrective action, the disqualification of Vistronix, and a new award to ManTech. Peraton protested again, alleging numerous grounds, including that certain of ManTech’s key personnel letters of commitment did not satisfy the RFP’s requirements. After several rounds of briefing, GAO conducted an outcome prediction/alternative dispute resolution (ADR) conference, during which it stated that it intended to sustain Peraton’s protest on the grounds challenging ManTech’s letters of commitment. Peraton’s second protest was dismissed as academic when DOS announced it would take corrective action on December 30, 2019.
As part of the corrective action, the agency reopened discussions with Peraton and ManTech, and sought to confirm key personnel’s availability and letters of commitment and validate proposals. Peraton protested again, generally arguing that the corrective action was unreasonably narrow and unequally tilted in favor of ManTech. That protest was denied, primarily because GAO regarded the corrective action as properly focused on the single issue identified by the ADR conference.
After that denial, on April 14, 2020, DOS issued another discussion letter, again asking to confirm the availability of key personnel and for updates to commitment letters. In response, Peraton asked if it could substitute some of its key personnel, along with new commitment letters and résumés, and the agency agreed. Following up, Peraton informed the agency that those changes would affect its technical and price proposals and asked if it could also update those. DOS refused, allowing only changes to offerors’ “key personnel resumes, letters of commitment, and to the column on the staffing plan template labelled ‘Relevant Years of Experience and Certifications.’” Id. at 3.
Peraton protested again, specifically challenging DOS’s limitations on changes as unreasonably narrow, arguing that this narrowed corrective action precluded the agency from following “the solicitation, among other things, [that] requires the agency to evaluate ‘the extent to which the Offeror’s proposed staffing plan, to include Key Personnel and alignment of hours per labor category reflects an understanding of the Government’s requirement and aligns with the Offeror’s technical approach.’” Id. (quoting RFP). Peraton noted “that its technical proposal discusses its previously proposed key personnel at length, either by name or by discussing their specific qualifications or credentials, and [complying with] the agency's proposed corrective action would pre[vent] Peraton from making changes to these aspects of its proposal.” Id.
In response, the agency argued that it could reevaluate the proposals without further changes beyond those allowed, mainly because “it evaluated alignment between the staffing plan and technical approach only by considering whether the level of effort proposed was adequate to perform the technical approach,” and “that key personnel were only individually assessed as part of the evaluation of the key personnel evaluation factor.” Id. at 4. More interesting, however, was DOS’s procedural argument regarding the posture of the case: “that it is unfair for Peraton to now protest a change in the scope of the agency’s corrective action that the agency undertook only at Peraton’s request.” Id. at 5.
GAO sustained Peraton’s protest, rejecting the agency’s arguments, stating:
[I]f an offeror's technical approach narratives had, in the first instance, included references to entirely different key personnel than were described in that offeror's staffing plan, it would have been clearly unreasonable and contrary to the solicitation for the agency to ignore that inconsistency. However, that is essentially what the agency proposes to do now.
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[T]he agency's proposed corrective action would permit revisions only to one column in the staffing plan matrix, but not to the accompanying staffing plan narratives that the offerors included in their proposals. However, as the protester notes, information in those narratives was referenced in the agency's evaluation as part of the basis of a strength assigned to the protester's proposal.
Id. at 6. In agreeing with Peraton, GAO relied in part on Deloitte Consulting, LLP, B-412125.6, Nov. 28, 2016, 2016 CPD ¶ 355, which sustained a protest involving similar facts regarding corrective action.
Addressing DOS’s procedural argument, GAO expressed empathy for the agency’s tribulations, but noted that if the agency did not allow Peraton to make updates to other aspects of its proposal, it “would, in effect, force offerors to submit facially inconsistent proposals and force the agency to ignore the solicitation's requirement.” Peraton, B-416916.8, et al., at 6.
This decision provides several takeaways for contractors. First, while corrective action is typically a desirable outcome in a protest, a contractor should carefully review the scope of that corrective action. Whenever given the opportunity to make changes or updates to its proposal, a contractor should consider how those changes affect other aspects of its proposal. If a change to one part affects another, this decision shows that an agency should allow those changes.
More generally, this decision also shows that success in post-award protests often involves situations where the protester directly ties its arguments to the evaluation criteria. In effect, Peraton’s protest here was sustained because it was able to show how, if further revisions to its proposal beyond the corrective action allowed by DOS were not permitted, it would have effectively forced Peraton to resubmit an updated proposal that could not conform to the RFP.
Finally, persistence pays off. Of course, protest grounds must be reasonable and well founded, but contractors should keep a close watch for protest issues that may arise during every stage of a procurement. Venable’s Government Contracts Group has years of experience dealing with bid protests and would be happy to assist with identifying those protest issues that are worth protesting.