Abacus Technology Corporation

Abacus Technology Corporation

The resolution issued on the date less than turned into field to a GAO Protective Order. This edition has been authorized for public release.
Matter of:  Abacus Technology Corporation
File:  B-417749.2; B-417749.3
Date:  March 9, 2020
Alexander B.

Ginsberg, Esq., Meghan D.

Doherty, Esq., Aaron R.

Ralph, Esq., and Toghrul M.

Shukurlu, Esq., Pillsbury Winthrop Shaw Pittman LLP, for the protester.
Aron C.

Beezley, Esq., Sarah S.

Osborne, Esq., Lisa A.

Markman, Esq., and Patrick R.

Quigley, Esq., Bradley Arant Boult Cummings LLP, for MicroTechnologies, LLC, the intervenor.
Alexis J.

Bernstein, Esq., and Major Alexander L.

Lowry, Department of the Air Force, for the employer.

Paula A.

Williams, Esq., and Edward Goldstein, Esq., Office of the General Counsel, GAO, participated in the training of the resolution.

Protest that industrial enterprise failed to rather compare whether the awardee may also be in a position to perform the assignment order facilities at the price proposed is brushed aside in which the solicitation did not supply for evaluation of the realism of offerors’ fees. 
Abacus Technology Corporation (Abacus), of Chevy Chase, Maryland, protests the issuance of a assignment order to Micro Technologies, LLC (MicroTech), of Vienna, Virginia, beneath fair chance proposal request (FOPR) No. FA5641-19-R-A002, which turned into issued through Department of the Air Force, for network and infrastructure aid facilities.  The protester argues that the company unreasonably evaluated the awardee’s technical inspiration and failed to determine whether the awardee also can just carry out the assignment order requirements at its proposed price. 
We disregard the protest.
The FOPR turned into issued on March 25, 2019, pursuant to the fair opportunity ordering methods of Federal Acquisition Regulation (FAR) § 16.505, for a contractor to supply network and infrastructure aid facilities at distinctive Air Force destinations in Europe.  The solicitation contemplated the issuance of a fixed-cost assignment order for a
1-year base period with three 1-year options.  FOPR Cover Letter.  The competition turned into limited to small industrial offerors who hang one of the agency’s NETCENTS-II NetOps & Infrastructure numerous-award indefinite-delivery, indefinite-quantity (IDIQ) contracts.  Id.  In commonplace terms, the functionality paintings remark (PWS) required the contractor to supply qualified expert employees in precise exertions categories, for targeted geographic destinations, to effectively carry out all mentioned PWS tasks.  PWS at 81-92.  The PWS also protected anticipated staffing degrees, stated in terms of full-time equivalents (FTE) for each exertions category, for each geographic location, and by means of year.  Id. at 103-104.

As amended, the solicitation established that the project order would be issued to the offeror who was deemed responsible and whose technically appropriate concept represented the best value to the government, explained as “the be offering which gifts the maximum advantageous aggregate of risk and entire evaluated price.”  FOPR amend. 1 at 16.  The solicitation brought up that proposals would be evaluated below two diagnosis factors, technical and cost/price.  Id. at 16-17.  The technical evaluation aspect had three subfactors:  technical capacity, control, and technical experience.  Under either technical subfactor, proposals may also be evaluated on an acceptable/unacceptable basis, and proposals may also then be assigned a possibility ranking of low, moderate, or prime possibility for each technical subfactor.  Id. at 17-18.  Under the charge/charge prognosis element, the solicitation pointed out that charge/price proposals “should help the proposed technical mindset” and might be evaluated for completeness, reasonableness, and unbalanced pricing.  Id. at 19.  Offerors whose proposed price was determined to be incomplete, unreasonable, or unbalanced could now not be even handed for award.  Id. 
As relevant here, to aid the contracting officer in making the responsibility resolution, the solicitation required offerors to put up a complete compensation plan for all professional staff to include a achieved whole reimbursement worksheet directory the salaries and fringe benefit kit for their expert employees, surveys and studies, and assessment.  FOPR at 9, 33.  In getting ready their worker repayment plan, the solicitation prompt offerors to talk approximately how their proposed repayment package pondered a sound management mindset, an understanding of the contract requirements, and how the proposed earnings and fringe benefits can also facilitate recruitment and retention of employees.  Id. at 10, 33.  The solicitation did no longer include FAR provision 52.222-46, Evaluation of Compensation for Professional Employees. 
Multiple offerors submitted proposals, including Abacus and MicroTech.  Following an evaluation of proposals, the service provider conducted a best-cost tradeoff and specific MicroTech’s thought as the best cost.  On June 27, 2019, Abacus received an unsuccessful offeror note and debriefing letter in which the supplier notified Abacus that the task order changed into issued to MicroTech.  In that word, the organisation indicated that Abacus’s inspiration changed into assigned a chance rating of low under all technical diagnosis subfactors, with a entire evaluated price of $64,407,498.  The enterprise’s notice also indicated that MicroTech’s concept become assigned a chance rating of slight below one technical evaluated subfactor, with a total evaluated cost of $41,965,204.  The supplier’s notice entreated Abacus that the fair opportunity resolution authority (DA) even handed each offeror’s possibility ratings and the significant price differential among the two offerors’ complete evaluated price and concluded that MicroTech’s inspiration became the maximum advantageous combination of risk and complete evaluated charge.  The DA decided that the assignment order should be issued to MicroTech.  Protest exh. A, Notice of Award and Debrief to Unsuccessful Offeror at 1-2 (June 27, 2019).  Thereafter, Abacus submitted and got responses to its follow-up debriefing questions. 
On July 8, Abacus filed its first protest with our Office, docketed as B-417749, and an amended and consolidated protest on July 12, complicated the corporation’s evaluation of MicroTech’s thought and the easiest-value tradeoff resolution.  Abacus alleged that MicroTech’s thought deserve to have been rated either technically unacceptable, or assigned a higher chance level, because the awardee allegedly failed to propose a sufficient number of FTE’s to meet the government’s needs, as evidenced through its unreasonable low price.  Amended and Consolidated Protest, July 12, 2019, at 10-12.  Abacus also alleged that the company failed to properly examine the awardee’s whole worker reimbursement plan, arguing that the agency become required to carry out a price realism diagnosis to verify whether the awardee’s low price pondered a lack of technical understanding of the solicitation necessities.  As aid, the protester argued that considering the fact that the “text of the Total Employee Compensation section of the Solicitation is substantially similar to the text of FAR 52.222-46,” the Air Force become required to carry out a charge realism analysis of the awardee’s proposed employee reimbursement.  Id. at thirteen (citing, SURVICE Eng’g Co., LLC, B-414519, July 5, 2017, 2017 CPD ¶ 237 at 5). 
On August 1, the service provider advised that it intended to take corrective action in reaction to the protest.  Specifically, the Air Force brought up that it may take the following actions:  reevaluate MicroTech’s total worker compensation plan, make a new obligation determination, re-examine MicroTech’s technical risk in the staffing component below the control subfactor, make a new award decision consistent with the solicitation’s prognosis criteria, and other corrective motion that it deemed appropriate.  Notice of Corrective Action at 1 (Aug. 1, 2019).  We brushed aside the protest as educational based mostly on the supplier’s notice.  Abacus Technology Corp., B-417749, Aug. 7, 2019 (unpublished decision).

As part of the corrective motion, the organisation dependent a competitive diversity comprised of proposals submitted by means of Abacus and MicroTech, conducted what the industrial enterprise terms “interchanges” with either offerors, and reevaluated proposals.  The organisation concluded that both offeror’s employee repayment plan contemplated a sound management mind-set and understanding of the solicitation requirements.  The organization also evaluated each thought as technically appropriate and assigned each inspiration a possibility rating of low.  The DA decided that the idea submitted through MicroTech represented the easiest value to the govt and issued the task order to MicroTech.  Protest exh. A, Debriefing Letter to Abacus at 1-2 (Nov. 19, 2019).

On December 2, Abacus filed the current protest on considerably the similar grounds as its customary protest, stating that the industrial enterprise’s corrective action “did no longer somewhat determine any of Abacus’ customary concerns.”[1]  Protest at 2. 
The gravamen of Abacus’s protest is that the industrial enterprise unreasonably failed to compare whether MicroTech may be capable of performing the task order requirements at the price it proposed.  In this regard, the protester aspects out that MicroTech’s proposed cost of $41,965,204 became considerably cut than its proposed charge of $64,407,498, and contends that the commercial enterprise unreasonably failed to examine whether the awardee’s price was too low to achieve the required point of performance or whether MicroTech failed to come with pricing for a element of the requirements.  Additionally, Abacus contends that the commercial enterprise need to have evaluated the awardee’s employee reimbursement plan to verify whether the awardee has the ability to provide the levels of compensation proposed to recruit and hold top-point experts to make certain a success agreement functionality.  These arguments, in effect, fear whether the company was required to conduct a price realism analysis. 
The agency and the intervenor asked dismissal of the protest, arguing that the solicitation did now not supply for an evaluation of whether an offeror’s proposed price is too low or whether it reflects an offeror’s knowing of the solicitation’s necessities or potential to carry out the task order.  Req. for Dismissal at 3-5; Intervenor’s Resp. to Req. for Dismissal at 2-5.  We agree that Abacus’s allegations fear whether the organization turned into required to behavior a price realism prognosis and brush aside the protest because, as filed with our Office, it does not identify a valid foundation for challenging the organization’s actions.  4 C.F.R. § 21.1(f) and § 21.5(f).

Where a solicitation contemplates issuance of a fixed-charge project order, or a fixed-charge portion of a assignment order, charge realism is now not typically even handed, because a fixed-priced order places the chance and responsibility for expenses and resulting gain or loss on the contractor.  Maxim Healthcare Servs., Inc., B‑412967.9, B‑412967.11, June 25, 2018, 2018 CPD ¶ 230 at 8; HP Enter. Servs., LLC, B-413888.2 et al., June 21, 2017, 2017 CPD ¶ 239 at 5.  While an supplier may behavior a cost realism analysis in awarding a fixed-price agreement or task order for the limited intention of assessing whether an offeror’s or vendor’s low price reflects a lack of technical knowing of chance, offerors or owners ought to be urged that the service provider will behavior such an analysis.  FAR provision 15.404-1(d)(3); Advanced C4 Solutions, Inc., B‑416250.2 et al., Oct. 2, 2018, 2018 CPD ¶ 344 at 5; Emergint Techs., Inc., B-407006, Oct. 18, 2012, 2012 CPD ¶ 295
at 5-6. 
Absent an specific price realism provision, we will handiest conclude that a solicitation contemplates a cost realism evaluation where the solicitation:  (1) states that the supplier will review fees to check whether they are so low that they reflect a lack of technical knowing, and (2) states that a thought can be rejected or assessed technical risk for offering low prices.  NJVC, LLC, B‑410035, B‑410035.2, Oct. 15, 2014, 2014 CPD ¶ 307 at 9; DynCorp Int’l LLC, B‑407762.3, June 7, 2013, 2013 CPD ¶ 160 at 9. 
The protester argues that the corporation was required to conduct a realism evaluation of MicroTech’s worker repayment plan, we even though finish that the solicitation did no longer come with such a requirement.  In help of its position, the protester points to the solicitation language developing that the organization would examine an offeror’s employee reimbursement plan to examine whether the proposed reimbursement kit pondered a sound control attitude, an knowing of the contract requirements, and how the proposed income and fringe merits might facilitate recruitment and retention of staff.  The protester notes that this language is substantially similar to the text of FAR provision 52.222-46, Evaluation of Compensation for Professional Employees.  Specifically, whilst covered in a solicitation, the applicable element of this provision requires the govt to evaluate an offeror’s expert employee compensation plan to investigate whether the plan “reflects a sound control frame of mind and knowing of the agreement necessities” and assess “the offeror’s skill to deliver uninterrupted prime-quality work.”  FAR provision 52.222-46(a).  The protester further notes that our Office has explained that this provision practically contemplates a charge realism analysis.

[2]  By the inclusion of language identical to that contained in FAR provision 52.222-46, the protester concludes that the solicitation required a price realism diagnosis to examine whether the awardee’s reimbursement plan became realistic. 
While we agree with the protester that the solicitation and the pointed out FAR provision contain similar language, the protester ignores the statement that, according to the particular terms of the solicitation, an offeror’s employee repayment plan changed into submitted best to support the contracting officer in making a responsibility resolution.  See FOPR at 9.  The charge/price analysis criteria stated nothing about comparing an offeror’s compensation plan, or price tips for realism.  Rather, the solicitation mentioned handiest that charges would be evaluated for completeness, reasonableness, and balance.  FOPR amend. 1, at 19-20.  In other words, nonetheless the similarity of the language, the solicitation notified offerors that expert worker reimbursement guidance may also just most effective be used in the context of an offeror’s obligation determination–no longer a price realism evaluation.

To the extent the protester’s allegations can be read as a challenge to the contracting officer’s affirmative decision of MicroTech’s duty, our Office does now not review affirmative determinations of obligation except in limited circumstances.  Such instances are protests where it is alleged that definitive responsibility criteria in the solicitation were now not met, or protests that name evidence raising severe issues that, in attaining a certain obligation decision, the contracting officer unreasonably failed to agree with handy relevant guidance or in a different way violated statute or regulation.  4 C.F.R. § 21.5(c); go to, e.g., Active Deployment Sys., Inc., B-404875, May 25, 2011, 2011 CPD ¶ 113 at 3; FCi Fed., Inc., B-408558.4 et al., Oct. 20, 2014, 2014 CPD ¶ 308 at 7.  Neither exception applies here.
Here, we find that the FOPR did now not include an explicit price realism provision and we conclude that a price realism prognosis changed into no longer required by way of the terms of the solicitation, as the protester shows.  The solicitation did now not state, expressly or differently, that the company may also evaluate whether offerors’ proposed expenses were realistic, i.e., too low for the solicited task order requirements or state that the enterprise might reject a concept or assess a technical risk because the offeror’s proposed expenses were too low.  In sum, Abacus’s claims that MicroTech submitted an unreasonably low price–or even that the proposed price is below the charge of performance–fails to allege a cognizable ground for protest and hence is pushed aside without extra motion.  4 C.F.R. §§ 21.1(c)(4) and (f); Midwest Tube Fabricators, Inc., B-407166, B-407167, Nov. 20, 2012, 2012 CPD ¶ 324 at 3.

We also brush aside Abacus’s allegation that MicroTech’s unreasonably low price indicates that the awardee failed to include pricing for a portion of the solicitation requirements, and the protester’s assertion that the company’s analysis of MicroTech’s proposal below the control evaluation subfactor became unreasonable for failing to assign a higher possibility rating given its low expenses.  The first allegation is primarily based totally on unsupported speculation, and the 2nd is, in effect, not anything more than an extension of the protester’s price realism issue, which as famous above, has no foundation in the terms of the solicitation.  Our Bid Protest Regulations require that a protest include a unique observation of the felony and real grounds for the protest, and that the grounds stated be legally adequate.  4 C.F.R. §§ 21.1(c)(4), (f); go to also AeroSage, LLC; Sage Care, Inc., B-415267.thirteen, B-415267.14, Mar. 19, 2018, 2018 CPD ¶ 114 at 5.  These requirements take into account that protesters will supply, at a minimum, either allegations or evidence sufficient, if uncontradicted, to determine the likelihood that the protester will prevail in its claim of unsuitable supplier action.  Kodiak Base Operations Servs., LLC B-414966 et al., Oct. 20, 2017, 2017 CPD ¶ 323 at 3.

 The protester’s allegations do no longer meet those standards.  4 C.F.R. § 21.5(f).

The protest is brushed aside.

Thomas H.

General Counsel