Similar in size and scope

We've talked before about the way that bid protests usually work. Typically, there are three ways a protestor can claim that an agency messed up:

  1. The agency screwed up some procedural thing.
  2. The agency rated the winner too high.
  3. The agency rated the protestor too low.

A good thing for protestors is that agencies often mess things up! A bad thing, though, is that during bid protests, agencies are given a bunch of leeway. Specifically, GAO and the Court of Federal Claims will use phrases like "we will not substitute our judgment for that of the agency" or "the decision is at the discretion of the contracting officer" or "agency's actions will not be disturbed unless they are unreasonable". Along those lines anyway.

Basically, GAO and the COFC don't want to be in the business of second-guessing agencies. And it's pretty rare to see an agency straight-up lose because the GAO says the agency's decision was unreasonable.

But, of course, sometimes, just like that,[1] it happens!

General Dynamics Information Technology, Inc. (GDIT), of Falls Church, Virginia, challenges the issuance of a task order to GovCIO, LLC, of Fairfax, Virginia, by the Department of Veterans Affairs (VA), under request for task order response (RTOR) No. 36C10D22Q0026, which was issued for file conversion services for the Veterans Benefits Administration (VBA). GDIT argues that the award to GovCIO was improper because the agency unreasonably evaluated the protester’s and awardee’s proposals under the technical and past performance factors, the agency’s consensus technical evaluation was not adequately documented, and because the award decision was inconsistent with the solicitation criteria and not adequately documented.

We sustain the protest.

GDIT managed to knock out GovCIO because the agency rated GovCIO too high. You sure don't see that every day!

The GAO opinion here is a touch long, very specific to the proposals, and not all that exciting from a fact-pattern perspective. The VA needed to buy some file-conversion services. Two offerors put together proposals to do the file-conversion services. The VA accepted the proposals. After evaluation, the offerors' proposals were tied from a past performance perspective and they split the difference on technical approach and price. The one with the (significantly) lower price won. Yawn.

And yet! GDIT's main argument—the one that carried the day, anyway— was that the GovCIO's projects provided in its proposal for purposes of past performance[2] were not really "relevant" because they were not "similar in size and scope". If the projects are not relevant, the VA can't use them and GDIT wins on each factor other than price, the least important factor. It's a pretty straightforward application of the "agency rated the winner too high" strategy.

Specifically, as part of its proposal in support of past-performance, GovCIO submitted two projects, one with a price tag of $101 million and one with a price tag of $40 million, both at the VA. But, GovCIO's proposal was over $240 million for the procurement under protest, which is more than double the cost of the other projects.

GAO essentially nodded sagely and said "Yes, true. Those do seem a bit too small to be similar in size."[3]

The agency’s response to the protest does not specifically explain how it found the size of the PMCMS reference relevant in light the smaller size of the reference ($101 million) as compared to the proposed price for this procurement ($241 million). The agency also did not meaningfully address the difference in the number of FTEs under the reference (between [DELETED] and [DELETED] FTEs) as compared to the awardee’s proposed staffing for this procurement (between [DELETED] and [DELETED] FTEs). Similarly, the agency does not specifically explain how it found the size of the EMMS reference relevant in light of the smaller size of the reference ($40 million) as compared to the proposed price for this procurement ($241 million). Nor does the agency meaningfully address the significant difference in the number of FTEs under the reference ([DELETED] FTEs) as compared to the awardee’s proposed staffing for this procurement (between [DELETED]and [DELETED] FTEs).


But then the GAO went further and cast doubt on whether the projects were similar in scope (feel free to skim these grafs, I'll give you the gist at bottom):

Although the agency does not specifically state how the evaluators evaluated the scope of the awardee’s past performance references, the agency generally states that the awardee had similar experience on the PMCMS contract with regard to “the same core requirement, including the receipt, handling, indexing, retrieval, packaging, and conversion of multiple document formats on behalf of VA and the Veterans it serves.” The agency also states that the EMMS contract “involve[d] the same core requirement, including the receipt, handling, indexing, retrieval, packaging, and conversion of multiple document formats on behalf of VA and the Veterans it serves.”

With regard to handling OMPFs, the agency states that “GovCIO does have experience with OMPFs under the Paper Mail contract.” The awardee’s proposal, however, does not specifically state that either the PMCMS or the EMMS contracts had experience working with [official military personnel files ("OMPFs")]. Rather, the proposal stated that under the PMCMS contract, the work involved “handling OMPF source material (e.g., C-files).” The agency acknowledges that C-files (VA disability benefit claim files) are different from OMPFs (armed service career files), but does not reasonably explain why it concluded that the proposal’s citation of C‑files demonstrated experience with OMPFs. Although the agency states that “based on VA’s oversight of the Paper Mail and EMMS task orders, VA is especially aware of GovCIO’s experience with DeckLogs, OMPFs, and C-Files,” it does not provide any information to substantiate this statement. Thus, to the extent the agency relied on its understanding that GovCIO’s past performance reflected experience handling OMPFs, the record does not support this conclusion.

Additionally, the agency does not meaningfully respond to the protester’s argument that the EMMS contract is not relevant to the PWS requirements because that contract provides email conversion services, rather than paper conversion services. The protester notes that the PWS for this solicitation stated that the source material to be converted into PDF format is “predominately in paper form but can also include CDs/DVDs/Microforms/etc.” As the protester notes, the awardee’s proposal stated that the EMMS contract involved conversion of electronic files rather than paper files.

Ok, I know that's a lot of text and I'm sorry. You see what I mean about the opinion being pretty fact specific.

The gist, though, is that GAO was unconvinced that GovCIO's past projects dealt with the same type of work that the VA actually needed for file conversion services. If you squint hard and read between the lines, a lot of it seems to boil down to the argument that it's just a lot easier to convert emails than it is to convert paper?

And, sure, I buy that, I guess.

After reading the opinion a couple of times, it is still a bit unclear though as to why GAO didn't just rely on agency discretion here. The agency said "we think these projects are relevant because (1) we know these projects that GovCIO did and (2) we know what we want to buy now and (3) we think those projects are similar." Usually, GAO would be like "fine, agency discretion, whatever". But not here.

Was $140 million difference in contract value just too much for GAO to stomach? Is it the fact that the proposal's value is more than double than the cited past projects? Did some GAO attorney have a really bad experience with scanning documents a while ago? Is GAO just trying to remind folks that it's watching and expects companies and agencies to do a little better on documenting past-performance decisions?[4]

Definitely not your lawyer, but it sure seems that GAO wanted to make a statement here that terms like "relevant" and phrases like "similar in size and scope" are not just license for an agency to do whatever it wants.

And definitely legal or proposal-writing advice, but if it were me, I'd probably want to double check the projects I'm submitting for past performance to make sure that it's abundantly clear that they're in the ballpark.

After all, you don't want to be on the losing end of a future decision that is similar in size and scope to this one.

[1] Hi mom, because I know you're reading this; yes, this is a Frisco Kid reference.

[2] Try saying "projects provided in its proposal for purposes of past performance" three times fast! I'll wait.

[3] Amusingly, GDIT tried to argue that the cost of its proposal should be the anchor point for GovCIO's past performance. I say amusingly because (a) how would GovCIO know that when it put its proposal together? and (b) GDIT's price was over $150 million more than GovCIO! GAO didn't bite on that argument, but I award bonus points for style.

[4] I'm sure this will make a good law review article, or at least a good law student note, someday. Who knows? There might even be some Very Serious Legal Analysis instead of the casual and irreverent form of legal realism on display in this post!

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