Rho Federal Programs Division, Inc.–Prices

DOCUMENT FOR PUBLIC RELEASE
The choice issued on the date beneath was topic to a GAO Protecting Order. This redacted model has been accepted for public launch.

Determination

Matter of: Rho Federal Programs Division, Inc.–Prices

File: B-420491.4

Date: August 11, 2022

DIGEST

Request for a advice for reimbursement of protest prices is denied the place the requester fails to reveal that any of the protest grounds, raised earlier than the company introduced its intent to take corrective motion in response to a supplemental protest, had been clearly meritorious.

Rho Federal Programs Division, Inc., a small enterprise of Durham, North Carolina, requests that our Workplace advocate that the agency be reimbursed the affordable prices of submitting and pursuing its protest of the contract award to The Emmes Firm, LLC, of Rockville, Maryland. The contract award was made underneath request for proposals (RFP) No. NIAID-DAIT-75N93020R00019, issued by the Division of Well being and Human Providers, Nationwide Institutes of Well being (NIH) for providers supporting NIH’s Allergy and Bronchial asthma Statistical and Medical Coordinating Heart. Rho argues that its protest was clearly meritorious and that the company unduly delayed taking corrective motion.

We deny the request.

BACKGROUND

NIH issued the RFP on August 20, 2020, looking for proposals to supply help providers for the design, improvement, execution, and evaluation of scientific analysis of allergic illnesses and bronchial asthma carried out on the Nationwide Institute of Allergy and Infectious Ailments.[1] COS at 1. The solicitation contemplated award of a single cost-reimbursement sort contract, on a best-value tradeoff foundation, contemplating the next analysis elements, in descending order of significance: technical, price, and previous efficiency. AR, Tab 3.1, RFP at 68, 117.

Following receipt of 5 proposals, an analysis, and the institution of a aggressive vary, NIH entered into discussions with three offerors, together with with Rho and Emmes. COS at 2-3. After evaluating revised proposals, the company awarded the contract to Emmes. Id. at 3.

On January 31, 2022, Rho protested the award to our Workplace. See, usually, Protest (B-420491). The protester alleged that NIH didn’t comply with the analysis standards set forth within the RFP, transformed a best-value tradeoff procurement right into a lowest-price, technically acceptable (LPTA) competitors, and didn’t make award on a cost-plus-fixed-fee foundation. Id. at 9-13. Rho additionally argued that the company didn’t carry out a price realism evaluation of Emmes’s proposed price, and failed to contemplate Rho’s incumbent previous efficiency reference. Id. at 13-17. Additional, Rho asserted that NIH misevaluated technical proposals, together with not contemplating technical dangers arising from the awardee’s low price, and didn’t assess the relative dangers related to every offeror’s previous efficiency. Supp. Protest at 6-24.

On February 11, Emmes, who intervened within the protest, requested a partial dismissal of the protest. Intervenor’s Req. for Dismissal at 1. Particularly, Emmes sought dismissal of Rho’s price realism, technical, and previous efficiency analysis challenges, and the protester’s assertion that NIH didn’t make award on a cost-plus-fixed-fee foundation as speculative and legally inadequate. Id. at 3-6. Our Workplace agreed, partially, and notified the events that we meant to dismiss the challenges to NIH’s award willpower, and the company’s failure to evaluate technical dangers arising from the awardee’s low price. GAO Discover of Determination on Partial Dismissal at 1.

In response to the remaining protest grounds, the company filed an company report, by which it maintained that the analysis and supply choice had been affordable and in line with the RFP standards. Subsequent to the receipt of the company report, Rho filed a second supplemental protest, increasing its preliminary arguments regarding the analysis of the technical, price, and previous efficiency proposals. Rho additionally argued that the company failed to contemplate related data in making its accountability willpower, and that Emmes has a disqualifying organizational battle of curiosity (OCI) that would not be mitigated. Feedback and 2nd Supp. Protest at 79-83. On this regard, Rho alleged that one member of NIH’s analysis panel on a “practically equivalent” procurement was a senior government at Emmes and the signatory of Emmes’s proposal for this procurement.[2] Id. at 80-81. Rho asserted that this panel member evaluated Rho’s proposal submitted in response to that associated procurement. Id. As well as, Rho argued that one other Emmes senior government was a member of the analysis panel on a 3rd associated procurement, by which Rho additionally participated. Id.

In response to those allegations, on March 23, the company suggested our Workplace that it meant to take corrective motion. Discover of Corrective Motion & Req. for Dismissal at 1. Particularly, the company defined that it might conduct an OCI investigation, exclude Emmes from additional consideration, reevaluate proposals, and make a brand new supply choice willpower. Id.

On the idea of the proposed corrective motion, our Workplace dismissed the protest as tutorial. Rho Fed. Sys. Div., Inc.,B-420491 et al., Apr. 1, 2022 (unpublished determination). On April 18, Rho filed this request. See, usually, Req. for Prices.

DISCUSSION

Rho seeks a advice from our Workplace to be reimbursed its affordable prices of submitting and pursuing its protest grounds raised in its unique and two supplemental protests. Rho alleges that the company didn’t take immediate corrective motion in gentle of its clearly meritorious protest. Req. for Prices at 1.

Beneath the Competitors in Contracting Act of 1984, our Workplace is permitted to advocate reimbursement of protest prices solely the place we discover that an company’s actions violated a procurement statute or regulation. 31 U.S.C. § 3554(c)(1). Our Bid Protest Laws present that the place an company takes corrective motion in response to a protest, our Workplace could advocate that the company pay the protester its affordable prices of submitting and pursuing the protest. 4 C.F.R. § 21.8(e). This imposition of prices will not be meant as an award to prevailing protesters or as a penalty to the company, however quite, is designed to encourage businesses to take immediate motion to appropriate obvious defects in aggressive procurements. Science Functions Int’l Corp.–Prices, B-410760.5, Nov. 24, 2015, 2015 CPD ¶ 370 at 4. Nevertheless, our laws don’t ponder a advice for the reimbursement of protest prices in each case the place an company takes corrective motion, however quite, solely the place an company unduly delays taking corrective motion within the face of a clearly meritorious protest. Info Ventures, Inc.–Prices, B-294580.2 et al., Dec. 6, 2004, 2004 CPD ¶ 244 at 2.

Thus, as a prerequisite to our recommending the reimbursement of prices the place a protest has been resolved by corrective motion, not solely should the protest have been meritorious, nevertheless it additionally should have been clearly meritorious, i.e., not an in depth query. Overlook Sys. Techs., Inc.–Prices, B-298099.3, Oct. 5, 2006, 2006 CPD ¶ 184 at 6. Usually, the existence of any defensible authorized place is adequate to indicate {that a} protest allegation was not clearly meritorious. Procinctu Grp., Inc.–Prices, B-416247.4, Sept. 21, 2018, 2019 CPD ¶ 36 at 4, recon. denied, Procinctu Grp., Inc.–Recon., B-416247.5, Mar. 15, 2019, 2019 CPD ¶ 109. Moreover, whereas we think about corrective motion to be immediate whether it is taken earlier than the due date for the company report responding to the protest, we usually don’t think about it to be immediate the place it’s taken after that date. AGFA HealthCare Corp.–Prices, B-400733.6, Apr. 22, 2009, 2009 CPD ¶ 90 at 3-4.

Rho contends that reimbursement is warranted right here as a result of NIH unreasonably determined to defend its “flawed analysis,” which pressured Rho to “expend pointless effort and value evaluating the document and drafting feedback” on the problems raised in Rho’s preliminary and first supplemental protests. Req. for Prices at 2. On this regard, the requester contends that these protest points had been clearly meritorious, and that NIH lacked a defensible authorized foundation to defend its analysis. Id. at 4-11.

First, Rho argues that NIH didn’t carry out a correct price realism evaluation of the labor prices proposed by Emmes, which had been a lot decrease than Rho’s labor prices on the incumbent contract. Id. at 5-7. Second, the requester alleges that NIH unreasonably evaluated offerors’ previous efficiency by failing to evaluate the relative threat of efficiency by every offeror and thereby not recognizing a big benefit related to Rho’s long-term, profitable efficiency because the incumbent contractor. Id. at 7-9. Third, Rho contends that the company’s analysis of technical proposals was unreasonable and unequal, and whereas NIH handled each technical proposals as basically equal, Emmes lacked equal expertise, personnel, and capabilities to carry out the requirement. Id. at 9. And fourth, Rho asserts that NIH improperly transformed a best-value tradeoff procurement into an LPTA competitors. Id. at 9-10. We think about every of Rho’s arguments in flip and, as defined beneath, conclude that none was clearly meritorious.

With respect to Rho’s price realism arguments, the requester notes that Emmes’s proposed prices, totaling practically $44.7 million, had been greater than $12 million decrease than Rho’s proposed prices of $56.8 million. Id. at 6-7. In response to the requester, because the incumbent contractor, Rho had a novel understanding of the enough prices of performing the contact, and therefore, Emmes’s a lot decrease prices ought to have “compelled” NIH to “inquire into whether or not it had carried out an enough price realism evaluation.” Id. at 6. Rho additionally contends that NIH ought to have analyzed whether or not the awardee’s decrease compensation of roughly 15 p.c mirrored a sound administration strategy and Emmes’s correct understanding of the necessities. Id.

Based mostly on our overview of the document, we conclude that NIH introduced a defensible authorized argument in response to those price realism challenges. Specifically, the company maintains that it performed a radical and well-documented price realism analysis, which decided that Emmes’s prices had been affordable, real looking for the work to be carried out and mirrored a transparent understanding of the necessities. Resp. to Req. for Prices at 5-6. The company notes that its price realism evaluation recognized a main cause for the full price distinction between Rho and Emmes as a “variation of proposed labor combine primarily based on every proposed offeror’s strategy, variations in charges of pay and wage escalation charges (largely decided by an offeror’s chosen strategy with respect to promotions and benefit pay–employee compensation–as nicely as inflationary cost-of-living projections).” Id.; AR, Tab 8.1, Abstract of Price Evaluation & Price Realism at 2. NIH argues that our Workplace agreed with this evaluation, after we introduced our intent to dismiss Rho’s allegations that Emmes’s low price mirrored its lack of information of the necessities and proposing an insufficient degree of effort and staffing combine as legally inadequate. GAO Discover of Determination on Partial Dismissal at 1. NIH additionally maintains that Rho’s larger price might be attributed to its highest [DELETED] among the many three offerors within the aggressive vary, and a considerably larger [DELETED], by over $4 million. Resp. to Req. for Prices at 6-7.

Based mostly upon our overview of this document and the above NIH arguments, our Workplace would have wanted to additional analyze the company’s price realism evaluation to resolve the deserves of the protester’s allegations. Because of this, we discover that NIH introduced a legally defensible argument with respect to the price realism problem, together with by presenting explanations for the price disparity and by noting that sure features of Rho’s argument had been tenuous and speculative. Accordingly, we conclude that the argument was not clearly meritorious.

Additional, Rho contends that NIH unreasonably evaluated previous efficiency by failing to evaluate the relative threat of efficiency for every offeror. Req. for Prices at 7-9. The requester alleges that regardless of the precise solicitation’s requirement to “assess the relative dangers related to every offeror,” NIH didn’t conduct a “substantive comparative evaluation” between Rho and Emmes. Id. at 7. Rho contends it was unreasonable for the company to conclude that neither of the offerors introduced any efficiency threat, and to contemplate each offerors’ previous efficiency document as equal. Id. at 7-8. On this regard, Rho argues that NIH improperly rejected its 20-year document of incumbent expertise merely as a result of it was carried out underneath a cooperative settlement quite than a contract. Id.

In response, NIH introduced a defensible authorized argument. The company famous that underneath the Federal Acquisition Regulation, previous efficiency data is outlined as pertaining to “a contractor’s actions underneath beforehand awarded contracts or orders.” Resp. to Req. for Prices at 7-9. As such, NIH argued that it correctly, and inside its discretion, excluded Rho’s efficiency on the cooperative settlement from the previous efficiency analysis for this procurement. Id. at 8; Memorandum of Regulation at 14. The company states that because of this, it reviewed the remaining previous efficiency references for each offerors, and concluded that neither Rho nor Emmes introduced a efficiency threat. Resp. to Req. for Prices at 7. We discover the company’s place right here affordable and discover that the company introduced a defensible authorized argument.

Third, Rho contends that its argument alleging that NIH unreasonably and unequally evaluated technical proposals was clearly meritorious. Req. for Prices at 9. The requester alleges that NIH improperly didn’t credit score Rho’s technical proposal for sure options that merited strengths whereas additionally assigning unwarranted weaknesses to Rho’s proposal. Id. Rho additionally argues that the company unreasonably elected to not elevate the agency’s preliminary technical rating after discussions, even though, in line with the company, the discussions efficiently resolved all of NIH’s considerations. Feedback and 2nd Supp. Protest at 14-19. Additional, Rho challenges NIH’s therapy of Emmes’s and Rho’s technical proposals as basically equal, arguing that Emmes lacked equal expertise, personnel, and capabilities to carry out the requirement. Id.

Based mostly upon our overview of the document, we discover that NIH introduced a defensible authorized place in response to the technical analysis problem. Because the company notes, it performed discussions with each Rho and Emmes as a result of it recognized a number of weaknesses in each technical proposals, regardless of their comparatively excessive scores. Resp. to Req. for Prices at 9-10; AR, Tab 9.3, Technical Analysis Abstract at 5. After discussions resolved the company’s considerations, NIH thought-about the 2 proposals, which had been separated by solely a 4 p.c margin, technically equal. Id. NIH additionally explains that whereas it didn’t revise Rho’s rating, it correctly took under consideration all the problems resolved via discussions, conducting a “qualitative evaluation” of Rho’s proposal “behind the purpose scores.” Resp. to Req. for Prices at 10. Additional, the company argues that the technical evaluations had been affordable and that the protester’s challenges represent not more than disagreement with the analysis judgments. Id.

As a fourth and ultimate argument, Rho alleges that the company lacked a defensible authorized place for its argument that NIH improperly transformed a best-value tradeoff procurement into an LPTA competitors. Req. for Prices at 10-11. The requester contends that NIH first registered the idea for award within the Federal Procurement Information System (FPDS) as LPTA quite than as a best-value tradeoff, reflecting NIH’s therapy of the analysis as a de facto LPTA procurement. Id at 11. Particularly, Rho argues that the company disregarded the agency’s “documented technical and previous efficiency superiority,” and made the award to Emmes solely on the idea of price. Id at 10-11.

Right here, we conclude that NIH has introduced a defensible authorized place in rebutting the allegation that it performed a de facto LPTA competitors. Resp. to Req. for Prices at 10-11. The company explains that it first incorrectly described the idea for award in FPDS as an LPTA however later corrected the error. Id. at 11. NIH additionally notes that it performed a radical analysis of proposals, and after discussions, the technical proposals of Rho and Emmes had been thought-about equal. Id. Equally, each proposals had been thought-about equal underneath the previous efficiency issue. Id. NIH argues that because of this, price correctly grew to become the figuring out issue within the company’s award determination. Id.

In sum, the document doesn’t present that NIH lacked a defensible authorized foundation when it filed its company report in response to Rho’s unique and first supplemental protests. Thus, Rho has not met its burden to ascertain that any of its preliminary and first supplemental protest grounds had been clearly meritorious.

The request is denied.

Edda Emmanuelli Perez
Normal Counsel