Bid protest decision

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to a GAO Protective Order.

This redacted version has been approved for public release.

Decision

Matter of:  Manhattan Strategy Group, LLC

File:  B-420021; B-420021.2; B-420021.3

Date:  October 26, 2021

Antonio R. Franco, Esq., Patrick T. Rothwell, Esq., Eric A. Valle, Esq., and

Christine C. Fries, Esq., Piliero Mazza PLLC, for the protester.

Adam K. Lasky, Esq., Edward V. Arnold, Esq., and Bret C. Marfut, Esq., Seyfarth Shaw

LLP, for Safal Partners, Inc., the intervenor.

Jose Otero, Esq., Virginia Ackerman, Esq., and Joshua L. Caplan, Esq., Department of

Labor, for the agency.

Paul N. Wengert, Esq., and Tania Calhoun, Esq., Office of the General Counsel, GAO,

participated in the preparation of the decision.

DIGEST

Protest that agency misevaluated protester’s quotation and conducted an unequal

evaluation under one subfactor is denied where the record shows the evaluation was

reasonable and consistent with the solicitation’s evaluation criteria.

DECISION

Manhattan Strategy Group, LLC, of Bethesda, Maryland, a small business, protests the

award of a federal supply schedule (FSS) task order to Safal Partners, LLC, of Houston,

Texas, also a small business, under request for quotations (RFQ)

No. 1605C5‑21‑Q‑00034, issued by the Department of Labor (Labor) for operation of the

National Veterans’ Technical Assistance Center (NVTAC).  Manhattan, the incumbent

contractor, argues that Labor misevaluated both firms’ quotations and made an unreasonable

source selection decision.

We deny the protest.

BACKGROUND

The RFQ, issued on June 21, 2021, sought quotations from firms with which Labor had

previously established blanket purchase agreements (BPA) to provide technical

assistance and education/outreach services.  The scope of the requirement was to

operate the NVTAC and develop innovative practices and strategies so that Labor’s Veterans

Employment and Training Services and Homeless Veterans’ Reintegration Programs

(HVRP)[1] would

improve evidence-based practices with the goal of strengthening the effectiveness of

technical assistance, and ensuring broad adoption of practices that were identified as

promising.  Agency Report (AR), Tab 3a, RFQ at 7.  The RFQ contained a

performance work statement (PWS) that organized the services and deliverables into five

task categories:  technical assistance; content innovation and partnership; virtual

and in-person technical assistance conferences; electronic resource management; and

contract management, logistical, and programmatic reports.  Id.

at 20-25.  The resulting time-and-materials order would have a base term of

1 year, and four 1‑year options.  Id. at 7‑9.

Quotations would be evaluated under three factors:  technical capability and key

personnel, past performance, and price.  Id. at 48.  The two non-price

factors combined were described as being significantly more important than price, but price

would become “significantly more important” if the non-price factors “approached

equality.”  Id.  The RFQ also stated that Labor was interested in

“obtaining superior technical skill-sets [rather] than . . . making an award at

the lowest overall [price].”  Id.

The evaluation under the technical capability and key personnel factor would assess both

a vendor’s approach to five tasks identified in the accompanying performance work

statement (PWS) and the qualifications of its key personnel.  Id.

Quotations would be evaluated under this factor using adjectival ratings on a “meets, does

not meet, [or] exceeds basis.”  Id.  The RFQ also informed vendors that

the technical quotation should demonstrate a “full understanding of tasks” and should show

the firm’s “ability to provide innovative ideas.”  Id.  The five tasks

were technical assistance; content innovation and partnership; virtual technical assistance

conference and/or meetings; electronic resource management; and contract management and

logistical reports.  Id. at 20.  The key personnel subfactor of the

technical factor was to assess the qualifications of the vendor’s project manager and its

coach, under a set of minimum qualifications and experience for each position.

Id. at 11-12, 45, 48-49.  A rating of exceeds could be assigned “if a

candidate had more than the minimum years of experience.”  Id.

at 48.

The past performance evaluation would include assessment of predecessor companies, key

personnel with relevant experience, and subcontractors that would perform major or critical

elements.  Id. at 49.  The evaluation would result in adjectival ratings

of low, medium, or high-risk (or a neutral rating of unknown risk for a vendor that lacked

a sufficient record of relevant performance).  Id.  Each vendor’s proposed

pricing would be evaluated using the agency’s projected hours for each labor category and

the vendor’s base labor rate as well as an “overtime rate.”  The RFQ also provided for

prices to be assessed for reasonableness.  Id. at 50.

Labor received quotations from three vendors, including Manhattan and Safal.  A

source selection evaluation board (SSEB) evaluated each quotation, prepared a narrative

assessment, and assigned an adjectival rating under both the technical capability and key

personnel factor and the past performance factor.  The final ratings, along with the

bottom-line price for each firm, were as follows:

Vendor

Technical

Capability

Key Personnel

Past

Performance

Price

(Millions)

Manhattan

Acceptable

Exceeds

Low Risk

$7.19

Offeror A

Acceptable

Exceeds

Low Risk

$5.78

Safal

Exceeds

Exceeds

Low Risk

$5.82

Contracting Officer’s Statement (COS) at 10, 13.

The contracting officer, who served as the source selection authority (SSA), reviewed

the evaluation and pricing and concluded that since Manhattan’s quotation was no higher

rated than Offeror A’s, and technically lower-rated than Safal’s, and more than

23 percent higher priced than either, it was the least competitive and would not be

selected for award.  The SSA then considered a tradeoff between Offeror A’s and

Safal’s quotations, and determined that Safal’s provided technical advantages that were

worth the higher evaluated price (with no technical weaknesses or deficiencies).  The

SSA concluded that Safal’s quotation, therefore, represented the best value to the agency,

and selected Safal to receive the order.  AR, Tab 12, Source Selection Decision

Document at 5.  After receiving notice of the selection and a brief explanation,

Manhattan filed this protest.

DISCUSSION

Manhattan challenges the evaluation of both its own and Safal’s quotations, as well as

the rationale for the source selection decision.  Labor argues that Manhattan is not

an interested party due to the presence of Offeror A as a vendor with the same adjectival

ratings and a lower price.  However, the firm is an interested party to challenge the

technical evaluation of its own proposal as unreasonable and as reflecting unequal

treatment because those challenges, if successful, would place Manhattan’s quotation as

superior to Safal under the technical capability subfactor (and therefore, by implication,

superior to Offeror A).  Since Manhattan contends that its quotation would then be

shown to be the best value, we regard it as an interested party to raise those grounds of

protest.  However, as discussed below, the record does not provide a basis to sustain

Manhattan’s challenges to the technical capability evaluation.  As a result, the

protester is not an interested party to raise its remaining grounds of protest.

Misevaluation and Unequal Treatment

Manhattan argues that its quotation was misevaluated under the technical capability

aspect of the technical capability and key personnel factor.  The firm contends that

Labor overlooked “at least eighteen” aspects of its technical approach that should have

been considered strengths.  Supp. Protest at 7-14; Comments at 2, 17‑25.

Manhattan contends that in responding to the protest, Labor failed to rebut most of those

claimed strengths, and that our Office should therefore consider those points conceded, and

conclude that the firm’s quotation was misevaluated.  Id.; Supp. Comments at

13.

Where an agency issues a solicitation to vendors holding FSS contracts, and conducts a

competition among the vendors, we will review the record to ensure that the agency’s

evaluation is reasonable and consistent with the terms of the solicitation.

Spectrum Comm, Inc., B-412395.2, Mar. 4, 2016, 2016 CPD ¶ 82 at 8.

In reviewing protests of an agency’s evaluation and source selection decision in

procurements conducted under FSS procedures, we do not conduct a new evaluation or

substitute our judgement for that of the agency.  Harmonia Holdings Grp., LLC,

B-413464, B-413464.2, Nov. 4, 2016, 2017 CPD ¶ 62 at 7; Research Analysis &

Maint., Inc., B-409024, Jan. 23, 2014, 2014 CPD ¶ 39 at 5.  When the

procurement is conducted pursuant to Federal Acquisition Regulation (FAR) subpart 8.4 and

requires vendors to respond to a statement of work, the record must document the evaluation

and selection as provided in section 8.405-2(f) of the FAR, including the rationale for any

tradeoffs made in the selection.  Spectrum Comm, Inc., supra at 8.

Labor counters that its evaluation of both firms’ technical capability was reasonable

and consistent with the RFQ’s evaluation criteria.  With respect to Manhattan’s list

of allegedly-overlooked strengths, Labor argues that the evaluators reviewed the quotation

and expressly concluded that the firm’s technical approach did not meaningfully exceed the

requirements.  The agency maintains that the record documents a reasonable evaluation

that supports the judgment that Manhattan’s quotation was acceptable and satisfactorily

offered what the RFQ sought, “but [offered] nothing that made [Manhattan] get to the next

level.”  Memorandum of Law (MOL) at 6 (quoting AR, Tab 10, Technical Evaluation

Consensus Form at 6).

In reviewing the contemporaneous record of an evaluation, we have recognized that the

evaluation record may not document the evaluation judgments regarding individual aspects of

a quotation that did not constitute strengths, which a protester may later argue were

unreasonably overlooked.  Fundamentally, the evaluation of quotations is a matter of

agency discretion, a protester must demonstrate that the failure to assess those allegedly

overlooked strengths was unreasonable.  Metropolitan Life Ins. Co., B‑412717,

B‑412717.2, May 13, 2016, 2016 CPD ¶ 132 at 13.  Our review of the record shows that

Labor’s evaluation of Manhattan’s quotation under the technical capability subfactor was

reasonable, consistent with the RFQ, and did not involve unequal treatment.

Although Manhattan identifies eighteen allegedly overlooked strengths, it has not shown

that Labor’s evaluation judgment that none represented an improvement was

unreasonable.  While the evaluators did not address every aspect of the quotation in

their consensus report, the documentation required in a procurement under FAR subpart 8.4

is expressly minimized, and as relevant here, must include the evaluation methodology used

in selecting the successful vendor and the rationale for any tradeoffs in making that

selection.  FAR 8.405-2.  Manhattan’s argument is that it should have been

evaluated as having additional strengths based on eighteen innovations spread across the

five task areas in the RFQ.  For example, it proposed to have [DELETED] with

recipients “when [DELETED],” Comments at 18; it proposed to have its coaches

[DELETED] by working closely with them to “[DELETED],” Id. at 22; and

it offered to customize [DELETED] as needed.  Id. at 23.  However,

our review does not provide a basis to conclude that Labor was unreasonable in evaluating

these innovations as going beyond the services that the agency expected.[2]  Accordingly, Manhattan’s argument that

Labor overlooked technical strengths in the proposal does not show that the agency’s

evaluation judgments were unreasonable.  As a result, this ground of protest is

denied.

Manhattan next argues that the misevaluation of its quotation is evident because Labor

assessed the quotation as merely acceptable, even though the agency recognized that

Manhattan had an exclusive partnership with a nonprofit organization serving homeless

veterans that was a “vital” source of knowledge.  AR, Tab 10, SSEB Technical

Evaluation Consensus Report, at 6-7.  Manhattan contends not only that such a vital

partnership should have resulted in an adjectival rating of exceeds, but also that the

evaluators treated the quotations unequally.  In this regard, Manhattan notes that

Safal’s quotation merely stated that it might form a partnership with any of several

nonprofit organizations, but was nonetheless evaluated as exceeding the agency’s

requirements because the quotation showed Safal’s ability to identify vital partnerships

and supplement its expertise.  Id. at 1.  Additionally, Manhattan argues

that Labor should have discredited Safal’s potential partnership because among Safal’s list

of possible partnerships was the same nonprofit firm that Manhattan had identified in its

quotation as an exclusive partner.  Comments at 2, 16‑17; Supp. Comments at

11-12.

In response to Manhattan’s allegation of unequal treatment, the agency notes that the

evaluators identified several elements of Manhattan’s quotation that exemplified its

technical capability.  One of those elements was the firm’s continuation of

partnerships with two nongovernmental entities that would be, in the evaluators’ view,

“vital resources” of knowledge for serving homeless veterans.  AR, Tab 10, SSEB

Technical Evaluation Consensus, at 6.  The agency explains that the reference to

vital resources was descriptive of the role of its partnerships in Manhattan’s specific

technical approach.  The agency asserts that Manhattan’s protest is based on a

misreading of the evaluation record as implying that the agency would consider all

competing technical approaches to be inferior if they lacked the same partnership that the

agency viewed as a vital resource for Manhattan’s technical approach.

Labor contends that the evaluators reasonably considered Safal’s technical approach, and

based their evaluation on unique aspects that made the approach superior:  its use of

data analytics to improve services to corrective-action-plan/high-risk recipients, and its

approach to use of surveys that anticipated the potential need for Office of Management and

Budget (OMB) approvals, which the evaluation identified as a Paperwork Reduction

Act[3]

approach.  MOL at 5; Contracting Officer’s Statement at 10.  Thus, Labor argues

that the record shows that the evaluators reasonably considered Manhattan’s utilization of

vital resources--by which the evaluators were identifying an aspect that was vital to

Manhattan’s approach--but also their reasonable consideration of Safal’s approach, which

did not require reliance on the same resources in its technical approach.  As a

result, Labor argues, the record supports the different evaluation judgments regarding

those two different technical approaches, and that Manhattan’s claim of unequal treatment

should be denied.

We deny Manhattan’s claims of unequal treatment in the technical capability evaluation,

particularly in the assessment of strengths regarding partnerships with nonprofit

organizations.  We will not find that an agency has unequally evaluated proposals

where the differences in the evaluation are based on differences in the offerors’ technical

approaches.  Johnson Controls Sec. Sols., B-418489.3, B-418489.4,

Sept. 15, 2020, 2020 CPD ¶ 316 at 7.

Here, the record shows that Labor had a reasonable basis for reaching different

judgments regarding different approaches to the technical requirements.  For

Manhattan, the evaluators recognized that its approach emphasized the value of continuing

its existing partnerships to provide value to NVTAC.  On the other hand, the

evaluation notes that Safal identified veteran service organizations by name as one way

that Safal showed an ability to identify vital partnerships and to supplement its

expertise.  The evaluation then proceeds to emphasize other aspects of Safal’s

technical capability as particularly valuable:  its approach to dealing with Paperwork

Reduction Act requirements, and its use of innovative data analytics to better serve

NVTAC’s corrective action plan/high-risk recipients.  AR, Tab 10, SSEB Technical

Evaluation Consensus, at 1.

Additionally, the SSA’s selection decision did not mention Safal’s identification of

potential partnerships in explaining the source selection judgment, but instead based the

selection of Safal on its ability to assist NVTAC best through its preparation to address

Paperwork Reduction Act requirements and its ability to focus technical assistance using

data analytics.  AR, Tab 12, Source selection Decision Document at 5.  The record

thus does not support Manhattan’s challenge to Labor’s judgment that Safal’s quotation was

superior to Manhattan’s under the technical capability evaluation because of unequal

treatment.  Accordingly, we deny this ground of protest.

Interested Party

As noted above, Labor argues that the protest should be dismissed because Manhattan is

not an interested party to pursue a protest.  The agency argues that the record shows

that the SSA considered Offeror A to be next in line for award after Safal, not

Manhattan.  MOL at 2.  Manhattan opposes dismissal, arguing that its

challenges to the evaluation of its own quotation, along with the alleged unequal

evaluation treatment, make it an interested party.  Comments at 28.  In

Manhattan’s view, a reasonable evaluation would have shown its quotation was superior to

both Safal’s and Offeror A’s, and significantly, was worth the difference in price, making

Manhattan an interested party.  Id. at 28-29.

Our Office’s authority to decide protests requires that the protest be filed by an

interested party.  31 U.S.C. § 3551.  Determining whether a party is interested

involves consideration of a variety of factors, including the nature of issues raised, the

benefit or relief sought by the protester, and the party’s status in relation to the

procurement.  RELM Wireless Corp., B-405358, Oct. 7, 2011, 2011 CPD ¶ 211 at

2.  A protester is not an interested party where it would not be in line for contract

award were its protest to be sustained.  Id.

We regarded Manhattan as an interested party to pursue its challenges to its own

technical capability evaluation, and its argument of unequal treatment addressed

above.  In our view, but for the errors alleged by Manhattan, its quotation could have

been next in line for award.  However, the remainder of Manhattan’s challenges assert

that Safal’s quotation was misevaluated under other evaluation criteria; for example, that

Safal’s key personnel did not merit a rating of exceeds, and that the record does not

document a reasonable basis for that evaluation.  Manhattan does not meaningfully

challenge the evaluation of Offeror A’s quotation, however, other than

generally--principally contending that alleged flaws in the record must also have affected

Offeror A.

Since Manhattan’s challenges to the technical capability evaluation have been denied,

and Labor thus, reasonably, concluded that Manhattan’s quotation was not superior to

Offeror A’s in any respect, the record demonstrates that Offeror A would be next in

line for award, ahead of Manhattan.  Consequently, Manhattan is not an interested

party to challenge other aspects of the procurement--whether those challenges are to the

evaluation of Safal’s quotation or to Labor’s tradeoff judgment in selecting Safal for

award.  Accordingly, we do not address Manhattan’s remaining grounds of

protest.

The protest is denied.

Edda Emmanuelli Perez

General Counsel

[1] The HVRP administers the incarcerated

veterans’ transition program and the homeless female veterans and veterans with

families program.  RFQ at 6.

[2] Nor do we find any of the other

purported innovations identified in Manhattan’s protest, but which we find unnecessary

to discuss, were unreasonably evaluated.

[3] The Paperwork Reduction Act is codified

at 44 U.S.C. §§ 3501-3520.  While Manhattan argues that the evaluation is

incorrect because the specific words “Paperwork Reduction Act” do not appear in Safal’s

quotation, Labor rebuts that contention by noting that Safal’s quotation expressly

addresses the potential that OMB approval will be needed for surveys, and explains that

the evaluators understood that Safal was addressing the requirement for OMB approval

imposed by the Paperwork Reduction Act, which then led them to describe Safal’s

approach as including compliance with that law.