Do Not Expect High Technical Scores If Your Proposal Relies on Upgrades Not Available for Contract

By Dick Lieberman, Consultant and Retired Attorney

The Government Accountability Office (“GAO”) denied a protest where the protester’s technical solution relied on upgrades to an information technology tool which would not be available for a significant period of time after contract award. Lockheed Martin Corp., B-410329 et. al, Dec. 11, 2014. The Army Corps of Engineers (“Corps”) sought enterprise-wide information management/information technology (“IM/IT”) services throughout the United States. The solicitation advised that award would be made on a best value basis considering the following evaluation factors: (1) technical/business management (including mission solution and program integration); (2) past performance; (3) small business participation plan; and (4) price/cost.

Here is the timeline regarding Lockheed’s proposal and the award:

• July 2013 - proposals were submitted, and evaluated thereafter. The Corps was concerned about Lockheed’s reliance on “dataBoard 4.0,” an IM/IT tool that was not fully developed and wouldn’t be fully deployed for up to two years after contract award.

• September 2013 - the agency opened discussions and told Lockheed that it was concerned about dataBoard 4.0 because there was no tangible evidence of the product’s capabilities, and the timeline for full deployment of 2 years was “unacceptable.”

• November 2013 - Lockheed submitted proposal revisions, asserting there was “no reliance on dataBoard 4.0” but its proposal continued to make multiple references to the use of dataBoard 4.0.

• March 2014 - the agency reopened discussions, and once again expressed its concern regarding Lockheed’s reliance on dataBoard 4.0, identifying multiple portions of Lockheed’s proposal which indicated that dataBoard 4.0 was “a key component” of the proposal. It stated that the need for dataBoard 4.0 was a weakness.

• April 2014 - offerors submitted final proposal revisions, and in its submission, Lockheed simply deleted its prior references to dataBoard 4.0, frequently referring instead to “dataBoard” without identifying the version to be used or to other software tools.

Following evaluations of final proposals, Lockheed and Exelis (the awardee) were rated as follows:

Exelis Lockheed Technical/Business Management Outstanding Acceptable Past Performance Relevant/Substantial Very Relevant/Substantial Confidence Confidence [prior incumbent] Small Business Outstanding Outstanding Price/Cost $516.8 million 504.2 million On June 20, 2014, the Corps Source Selection Authority (“SSA”) selected Exelis’s proposal for award. In its decision memo, the SSA stated that Lockheed had one significant weakness, namely, its reliance on dataBoard to perform the services required even though there were a number of areas where capabilities being relied on were not part of the current dataBoard.

The SSA also stated that Lockheed provided an inaccurate listing of current dataBoard capabilities, and Lockheed’s reliance on capabilities which were not yet developed presented a high risk to successful contract performance. The SSA noted that there were significant differences between the prior contract performed by Lockheed and the current requirements. “The payment of an additional $12.6 million over the entire contract period for Exelis’s superior technical proposal clearly offers significant benefits to the government with very low risk of unsuccessful performance.” Lockheed protested, asserting that the Corps had misevaluated its proposal.

After examining the record of discussions, proposals and final proposal revisions, the GAO denied Lockheed’s protest because it was clear that the dataBoard upgrades were needed to meet the solicitation requirements, and Lockheed’s proposal “specifically recognized that a portion of the upgrades would not be available [at Authorization to Proceed].” GAO agreed that this was a significant weakness, and GAO had no basis to question the agency’s evaluation of the technical proposals.

TIPS:

(1) If you need upgrades to your systems in order perform the work in any solicitation (or to meet a contract specification), be sure that the upgrades will be available and ready for use when the contract is awarded, or, if permitted, when the authorization to proceed is to be issued.

(2) “Fuzzing over” in your proposal the version of an IM/IT (or any other) tool needed for contract performance, as Lockheed did, is likely to be recognized when an agency evaluates your proposal. Lockheed would have been better served by either accelerating development of dataBoard 4.0 so it would be available by the start of the contract, or if dataBoard 4.0 could not be made available, by using another tool that could meet the solicitation requirements.

Copyright 2015 Dick Lieberman, Permission Granted to the Maryland PTAC. This article does not provide legal advice as to any particular transaction.