Bid protest decision

DOCUMENT FOR PUBLIC RELEASE

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

This version, with no redactions, has been approved for public release.

Decision

Matter of:  SparkSoft Corporation

File:  B-420156; B-420156.2

Date:  November 15, 2021

Devon E. Hewitt, Esq., Protorae Law PLLC, for the protester.

Pamela Waldron, Esq., and Lucy G. Mac Gabhann, Esq., Department of Health and Human

Services, for the agency.

Young H. Cho, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO,

participated in the preparation of the decision.

DIGEST

1.  Protest challenging the terms of a solicitation as patently ambiguous is

dismissed as academic where the solicitation has been amended to remove the ambiguous terms

prior to the closing date for quotations.

2.  Protest arguing that the agency failed to provide adequate information about

the evaluation of protester’s quotation at stage one of the competition is dismissed for

failure to state a valid basis of protest where the protester elected to participate in the

next stage of the procurement after being informed that the firm was not likely to be a

viable competitor because its quotation was unacceptable.

DECISION

Sparksoft Corporation, of Catonsville, Maryland, challenges the terms of the

solicitation and the agency’s actions in connection with Task Order Request for Proposals

(TORP or RFQ)[1] No.

TORP-CMS-2022-200631, issued by the Department of Health and Human Services (HHS), Centers

for Medicare and Medicaid Services (CMS), for website quality control.  The protester

alleges that the solicitation is patently ambiguous and that the agency failed to provide

sufficient information about the evaluation of Sparksoft’s quotation.  The protester

also requests that our Office recommend the reimbursement of costs in connection with the

filing of its supplemental protest.

We dismiss the protest.

BACKGROUND

The solicitation, issued on May 24, 2021, as a small business set-aside pursuant to the

procedures of Federal Acquisition Regulation (FAR) subpart 16.5, sought quotations from

holders of CMS’s multiple-award Strategic Partners Acquisition Readiness Contract (SPARC)

indefinite-delivery, indefinite-quantity (IDIQ) contract.  RFQ at 1.[2]  The solicitation contemplated the

issuance of a fixed-price task order with a 1-year base period and four 1-year option

periods considering price and the following non-price factors:  relevant experience,

management approach and personnel qualifications, performance work statement, proposed

quality assurance surveillance plan, and section 508[3] product accessibility template.

Id. at 1, 12-16.

The solicitation advised vendors that quotations would be evaluated in two

stages.[4]

Id. at 3.  In the first stage, vendors were to submit their quotations

addressing only the relevant experience factor.  Id. at 4.  After the

stage one evaluations were completed, the contracting officer would advise vendors found to

have qualified relevant experience to participate in stage two.  Id. at 3,

12.  If, based on the information submitted at stage one, the agency found the vendor

was “unlikely to be a competitor,” the contracting officer would notify the vendor of such

and the basis for that opinion.  Id. at 3.  The solicitation refers to

this notification as the “advisory down-select.”  Id.  The solicitation

stated the agency intended this process to minimize development costs for vendors that had

little or no chance of receiving award.  Id.  Those vendors notified as

part of the advisory down-select, however, were allowed to participate in stage two if they

so desired.  Id.  Vendors that intended to participate in stage two were

required to inform the contracting officer of such within three business days after receipt

of the advisory down-select notification.  Id.

In the second stage, vendors would address the remaining evaluation factors

(i.e., those factors other than relevant experience).  Id.

at 6‑11.  Award would be made to the responsible vendor whose quotation--from

both stage one and stage two--provided the best overall value to the government,

considering price and non-price (technical) evaluation factors.  Id. at 11.

Sparksoft timely submitted a stage one quotation.  Based on the results of the

agency’s stage one evaluation, Sparksoft was informed on August 25 that the agency did not

recommend that Sparksoft proceed to the next stage of the procurement.  Req. for

Dismissal, attach. 1, Down-Select Notification.  On August 27, Sparksoft sent an

email, notifying the agency that the firm intended to participate in stage two of the

procurement.  Id., attach. 2, Commc’ns Between Agency and Sparksoft at 3.

In that notification, the protester complained that the agency had not provided sufficient

information about the evaluation of its stage one quotation and requested the agency “halt

[the] evaluation process” until Sparksoft received the information it requested regarding

the agency’s stage one evaluation of its quotation.  Id. at 2-3.

Sparksoft also pointed out what it believed were inconsistencies within the solicitation

and requested an extension of time to submit its stage two quotation.  Id. at

2.

On August 31, the agency acknowledged receipt of Sparksoft’s notice of intent to

participate in stage two of the procurement.  Id. at 1.  In that

communication, the agency informed Sparksoft that because the firm had elected to continue

to stage two of the competition, a more detailed debriefing regarding the evaluation of

Sparksoft’s stage one quotation could not be provided at the point.  Id.

The agency, however, did inform Sparksoft that its stage one quotation had been assigned a

rating of unacceptable and that the agency found its relevant experience to be

“unqualified.”  Id.  The agency also notified Sparksoft that the

submission deadline for stage two quotations had been extended to September 15 for all

vendors, and that the agency had not identified any inconsistencies in the

solicitation.  Id.  In response, Sparksoft sent an email later that day,

requesting additional information as to why the agency found the firm’s stage one quotation

“unqualified.”  Electronic Protest Docketing System (EPDS or Dkt.) No. 15, Agency

Resp. to GAO Request for Information (RFI), attach. 1, Sparksoft Aug. 31

Response.  The agency did not respond to this request for additional

information.  Protest at 5; Dkt. No. 15, Agency Resp. to GAO RFI at 1.

On September 14, prior to the deadline for the submission stage two quotations,

Sparksoft filed this protest with our Office.

DISCUSSION

The protester argues that the solicitation contains patent ambiguities and that the

agency is unreasonably failing to provide Sparksoft with additional information about the

evaluation of its stage one quotation.  Sparksoft also requests that our Office

recommend that HHS reimburse the firm its costs of filing the protest because the agency

issued an amendment to the solicitation after the protest was filed.  For the reasons

discussed below, we dismiss Sparksoft’s protest and request.

Patent Ambiguities

Sparksoft argues that the solicitation contains patent ambiguities as to how the agency

would consider the results of its evaluation of quotations under the non-price (technical)

factors.  Protest at 5-6.  The protester contends that the solicitation states

that the technical factors, when combined, are more important than price in one section and

in another section states that they are significantly more important than price.

Id. at 5.  The protester also argues that the solicitation contains conflicting

or inconsistent descriptions of the relative importance of the technical factors.

Id.

On September 14, the same day the protest was filed, the agency issued an amendment that

corrected the inconsistency with regard to the relative importance of the evaluation

factors.  Supp. Protest at 3; Dkt. No. 17, Agency Resp. to GAO RFI, Oct. 8, 2021,

attach., Amended RFQ, Sept. 14, 2021, at 6.  On September 27, the agency issued

another amendment clarifying that the technical factors, when combined, were significantly

more important than price.  Supp. Req. for Dismissal at 1; attach. 2, Amended

RFQ, Sept. 27, 2021, at 6.  These amendments were issued before the due date set

for the submission of the agency report.

The jurisdiction of our Office is established by the bid protest provisions of the

Competition in Contracting Act of 1984, 31 U.S.C. §§ 3551-3557.  Our role in resolving

bid protests is to ensure that the statutory requirements for full and open competition are

met.  Pacific Photocopy and Research Servs., B-278698, B-278698.3, Mar. 4,

1998, 98-1 CPD ¶ 69 at 4.

Here, the agency’s actions in issuing solicitation amendments to address the ambiguities

noted by the protester renders those challenges to the terms of the solicitation

academic.  The protester, itself, in its request for attorney’s fees, expressly

acknowledges that the agency addressed and corrected the ambiguous language raised in

Sparksoft’s first protest ground.  Supp. Protest at 3.  Protests of agency action

become academic when contracting agencies grant the relief requested.  Best Foam

Fabricators, Inc., B-274803, Oct. 28, 1996, 97-1 CPD ¶ 152 at 1.  Accordingly, we

do not consider academic protests because to do so would serve no useful public policy

purpose.  Dyna-Air Eng’g Corp., B-278037, Nov. 7, 1997, 97-2 CPD ¶ 132.

As a result, this allegation is dismissed.

Information Regarding the Evaluation of Sparksoft’s Stage One Quotation

Sparksoft next argues that the agency’s failure to provide additional information about

its evaluation under stage one (relevant experience factor) is unreasonable.  Protest

at 6-7.  The protester raises a number of arguments objecting to the agency’s

action here.  By way of example, Sparksoft contends that the agency’s failure to

provide it with additional information is preventing it from making an “informed choice” as

to whether the firm should expend additional resources to proceed to stage two.[5]

Id. at 7.  Sparksoft also contends that the agency’s actions (or inaction)

prevent it from ever challenging the basis for the agency’s unacceptable rating under the

relevant experience factor.  Id.

Underlying its objections to the agency’s actions, is the firm’s belief that the agency

was obligated to “justify” its rating of Sparksoft’s quotation as unacceptable because of

statements in the solicitation about the purpose of the two-stage advisory notification

process.  Id. at 7.  The solicitation advised vendors that, after stage

one, they would be informed whether they would be a “viable competitor” and the basis for

that conclusion.  RFQ at 3.  For the relevant experience factor (also referred to

as the stage one quotations), the solicitation stated that quotations would be reviewed and

assigning ratings of excellent, highly acceptable, acceptable, or unacceptable.

Id. at 12.  At the conclusion of the evaluation, vendors would be advised

whether their relevant experience was found to be “qualified,” which would inform vendors

of their expected likelihood to succeed in stage two.  Id.  The

solicitation provided that the two-stage approach was to “streamline the process for

[vendors] and minimize traditional burdens associated with lengthy paper-based

submissions.”  Id. at 3.

Our role in resolving bid protests is to ensure that the statutory requirements for full

and open competition are met.  Cybermedia Tech., Inc., B‑405511.3, Sept. 22,

2011, 2011 CPD ¶ 180 at 2.  To achieve this end, our Bid Protest

Regulations, 4 C.F.R. § 21.1(c)(4) and (f), require that a protest include a

detailed statement of the legal and factual grounds for the protest, and that the grounds

stated be legally sufficient.  These requirements contemplate that protesters will

provide, at a minimum, either allegations or evidence sufficient, if uncontradicted, to

establish the likelihood that the protester will prevail in its claim of improper agency

action.  Midwest Tube Fabricators, Inc., B‑407166, B‑407167, Nov. 20,

2012, 2012 CPD ¶ 324 at 3.

The agency informed Sparksoft on August 25 that the stage one evaluation was complete

and the agency concluded that it was unlikely Sparksoft would be a viable competitor during

stage two.  Protest at 4; Req. for Dismissal, attach. 1, Down-Select

Notification.  On August 27, Sparksoft informed the agency that it intended to

participate in stage two.  Id., attach. 2, Commc’ns Between Agency and

Sparksoft at 2-3.  In this email, Sparksoft requested, among other things, that the

agency provide additional information about the evaluation of its quotation, asserting that

the advisory notification Sparksoft received did not comply with the solicitation’s stated

intent “to minimize development costs for vendors that had little or no chance of receiving

award.”  Id. at 2.

On August 31, the agency confirmed receipt of Sparksoft’s notice of its intent to

participate in the second stage.  Id. at 1.  In that confirmation, the

agency explained that because Sparksoft had elected to participate in stage two of the

procurement, a debriefing that would have provided the vendor with the agency’s assessment

of strengths, significant weaknesses, and deficiencies in its stage one quotation could not

be provided when the procurement was still ongoing and an award was yet to be made.

Id.  Sparksoft was informed, however, that the firm’s relevant experience had

been evaluated and assigned a rating of “unacceptable” for that evaluation factor.

Id.

We find that this allegation fails to clearly state a legally sufficient ground of

protest to establish the likelihood that the agency in this case violated applicable

procurement laws or regulations.  4 C.F.R. § 21.5(f).  Here, the solicitation

clearly advised vendors that they would be informed after stage one whether they would be a

viable competitor and the basis for that conclusion.  RFQ at 3.  The agency’s

notification to Sparksoft on August 25 informed the firm that it had been assigned a rating

that resulted in a recommendation to not move forward to stage two, and that the agency

deemed it was unlikely the firm would be a viable competitor.[6]  Req. for Dismissal, attach. 1,

Down-Select Notification.  The protester’s argument here fails to state a legally

sufficient basis of protest and is akin to a challenge to the adequacy of a debriefing

under a FAR part 15 procurement, which we have repeatedly said, we do not review because

debriefings are procedural matters that do not affect the validity of an award.[7]

See, e.g., Metric 8 LLC et al., B-419759.2 et al., July 29,

2021, 2021 CPD ¶ 299 at 9; Symplicity Corp., B‑297060, Nov. 8, 2005, 2005 CPD ¶ 203

at 4 n.4.

Finally, Sparksoft’s assertion that the agency’s actions prevent it from ever

challenging the basis for the agency’s unacceptable rating under the relevant experience

factor also fails to state a valid basis of protest.  Here, the solicitation stated

that task order award will be based on evaluations of quotations from stage one and stage

two.  RFQ at 11.  The RFQ clearly explained that any firm notified after

stage one that it would not be a viable competitor in stage two was still eligible to

continue in the procurement, i.e., was not automatically eliminated from the

competition.  RFQ at 3.  Therefore, firms--such as Sparksoft--that elect to

participate in stage two of the procurement would have an opportunity to challenge the

agency’s evaluation of its quotation under both stages once an award has been made.

See Bastion Techs., Inc., B-418432, May 5, 2020, 2020 CPD ¶ 163 at 7.

Any challenges to the evaluation of Sparksoft’s quotation at this time would be premature

as the procurement is ongoing.  See Systems Implementers, Inc.,

B‑418963.4, Apr. 19, 2021, 2021 CPD ¶ 174 at 3-4.

In sum, Sparksoft’s arguments challenging the reasonableness of the agency’s actions in

connection with the information provided regarding the firm’s stage one evaluation are

dismissed as premature or failing to state factually and legally sufficient bases of

protest.  4 C.F.R. §§ 21.1(c)(4), (f); 21.5(f); Bastion Techs., Inc.,

supra.

Request for Recommendation for Reimbursement of Costs

In response to the agency’s issuance of amendments to the solicitation after Sparksoft

filed its initial protest, the protester submitted a “supplemental” protest requesting that

our Office recommend the reimbursement of costs for filing its initial protest.  Supp.

Protest at 3.  The supplemental protest simply observes that within hours of

Sparksoft filing its initial protest, the agency issued a solicitation amendment correcting

an error alleged by the protester.  Id.  Based on that observation, the

protester requests that we “sustain the first count of Sparksoft’s protest” and recommend

“CMS reimburse Sparksoft the cost of pursuing this protest count, including . . .

attorneys’ fees. . . .”  Id.

Under our regulations, if the agency decides to take corrective action in response to a

protest, GAO may recommend that the agency pay the protester the reasonable costs of filing

and pursuing the protest, including attorneys’ fees and consultant and expert witness

fees.  4 C.F.R. § 21.8(e).  Our regulations require that the protester’s request

be filed no later than 15 days after the date on which the protester learned (or should

have learned, if that is earlier) that GAO had closed the protest based on the agency’s

decision to take corrective action.  Id.

At this time, Sparksoft’s request for recommendation for reimbursement of costs is

premature.  If the protester wishes to seek a recommendation for reimbursement of

costs, such request may be filed after the closing of this protest, per our

regulations.[8]

The protest is dismissed.

Edda Emmanuelli Perez

General Counsel

[1] The solicitation refers to itself as

both a TORP and as a request for quotations (RFQ).  See, e.g., RFQ, attach.

J-2, Instructions to Offerors and Evaluation Criteria at 1 (herein referred to as the

“RFQ”).

[2] References to the solicitation or RFQ

are to attachment J-2, Instructions to Offerors and Evaluation Criteria that was

included in the original version of the solicitation emailed to vendors on May 24,

2021.  All citations to the record are to the consecutive numbering of pages in

the Adobe PDF documents provided in the record.

[3] Section 508 of the Rehabilitation Act of

1973, as amended, requires federal agencies to ensure that their electronic and

information technology (EIT) provides comparable access to people with and without

disabilities whenever an agency develops, procures, maintains, or uses EIT.

Visual Connections, LLC, B-407625, Dec. 31, 2012, 2013 CPD ¶ 18 at

1.

[4] Although firms that compete for task

orders under IDIQ contracts are generally referred to as “vendors” who submit

“quotations” and are “issued” task orders, the record and the parties’ filings also use

the terms “offerors,” “proposals,” and “award.” For the sake of consistency, we use the

terms to refer to the firms that will compete here as vendors who submitted quotations

for the issuance of a task order.

[5] As discussed above, Sparksoft notified

the agency of its intent to continue to stage two of the competition before even filing

its protest--and presumably without the information it needed to make an “informed

choice” as to whether to participate in the next stage.  Under these

circumstances, even if we were to find the agency’s actions here unreasonable, we

cannot see how Sparksoft could have possibly been competitively prejudiced.  Given

that Sparksoft has already elected to proceed to stage two of the procurement process,

the protester can hardly claim that the lack of information precluded the firm from

competing for award.  See Draeger, Inc., B-414938, Sept. 21, 2017,

2017 CPD ¶ 308 at 5 n.10 (finding that protester could not demonstrate competitive

prejudice by an alleged out-of-scope purchase order for medical equipment where the

protester’s own IDIQ contract included--and under which purchase orders had been

issued--the disputed equipment).

[6] Specifically, the protester was informed

of the following:

The Stage One evaluation included an assessment of

Relevant Experience responses, to determine the capability and suitability of the

respondent to perform the work required by the Statement of Objectives (SOO).

Each proposal was independently evaluated against the objectives of the SOO and

the Proposal Instructions/Evaluation Criteria.  The Government evaluated the

offeror’s technical proposal using an adjectival rating methodology.  Sparksoft

was found to have a rating which resulted in the recommendation to not move forward to

Stage Two.  Based on the Stage One evaluation, CMS has determined that it is

unlikely Sparksoft would be a viable competitor during Stage Two.  The intent of

this distinction is to minimize proposal development costs for vendors with little or

no chance of receiving an award.

Req. for Dismissal, attach. 1, Down-Select Notification.

[7] The protester does not dispute that the

RFQ seeks quotations from holders of CMS’s SPARC contract, using the procedures set

forth in FAR subpart 16.5.  Sparksoft, however, contends that the agency intended

to conduct the procurement consistent with the procedures outlined in FAR section

15.202, Advisory multi-step process.  Protest at 3, 6-7.  Under the

advisory, multi-step process, the agency is permitted to publish a presolicitation

notice providing a general description of a procurement and invite potential offerors

to submit the requisite information in order for the agency to evaluate whether the

respondent would be invited to participate in the resulting acquisition or if the

respondent was unlikely to be a viable competitor.  FAR 15.202.  Even if the

agency intended to use the process outlined in section 15.202 of the FAR--of which we

express no opinion--we fail to see how the agency’s action here was inconsistent with

that process, which merely requires the agency to provide “the general basis” for

finding the respondent unlikely to be a viable competitor.  FAR

15.202(b).

[8] Because the request is premature at this

juncture, we express no opinion on the merits of the request.  We note, however,

that when an agency takes corrective action in response to a protest, we may recommend

the agency reimburse the protester its protest costs if, under the circumstances, we

determine the agency unduly delayed taking corrective action in the face of a clearly

meritorious protest.  4 C.F.R. § 21.8(e); Information Ventures,

Inc.--Costs, B-294580.2 et al., Dec. 6, 2004, 2004 CPD ¶ 244 at 2‑3.

In other words, to prevail in its request, the protester must show (1) the agency

unduly delayed taking corrective action, and (2) its protest was not only meritorious,

but clearly meritorious.  Triple Canopy, Inc.--Costs, B-310566.9,

B-400437.4, Mar. 25, 2009, 2009 CPD ¶ 62 at 3.  Given the facts here, and if the

amendments correcting the ambiguities identified by Sparksoft were viewed as corrective

action, the agency’s actions were taken prior to the due date for the agency

report.  Generally, such actions would not be considered “unduly delayed” as

contemplated by our regulations.  AdaRose Inc.--Protest & Costs,

B-299091.2, Jan. 14, 2008, 2008 CPD ¶ 18 at 3-5.