DOCUMENT FOR PUBLIC RELEASE The resolution, issued on the date under, was the topic of a GAO safeguards order. This edited model has been permitted for publication.
matter of: Gateway Ventures, Inc.
Date: November 22, 2022
James Y. Boland, Esq., Allison M. Siegel, Esq., and Lindsay M. Reed, Esq., Venable LLP, for the protester. Emilia M. Thompson, Esq., Department of the Navy, for the company. Christine Milne, Esq., Scott H. Riback, Esq., and Tania Calhoun, Esq., Office of the General Counsel, GAO, helped put together the choice.
A protest that the company unreasonably excluded the protester’s proposal from consideration shall be rejected if the data present that the company correctly decided that the protester’s proposal was unacceptable as a result of it didn’t meet all of the cross/fail standards has fulfilled the request.
Gateway Ventures, Inc., of Norfolk, Virginia, is objecting to the award of a piece order to McLaughlin Research Corp., of Middletown, Rhode Island, beneath Request for Proposal (RFP) No. N66604-22-R-3001, issued by the Department of the Navy, Naval Sea Systems Command, for technical companies in help of the company’s towed hull and sensor methods applications. The protester alleges that the company inappropriately withdrew their proposal from consideration.
We reject the protest.
The information on this case are easy and indeniable. The RFP is contemplating awarding a reimbursable activity order beneath the Navy’s SeaPort Next Generation (SeaPort NxG) indefinite supply, indefinite amount contracts based mostly on a greatest compromise to supply technical help companies for a base 1 12 months interval and 4 1 12 months durations choice durations. Agency Report (AR), Tab 2, RFP, amend. 2 at 2-4, 7, 77. Firms have been suggested that the company would take into account 5 cross/fail necessities when deciding on the supply; proposed/evaluated prices; and two equally weighted non-cost components, technical functionality and previous efficiency. ID. at 77-81. The RFP required corporations to satisfy all 5 cross/fail components to be eligible for the work order, noting that failure to satisfy any of the components would lead to a proposal not being accepted for the project of the work order comes into query. ID. at 77. Since the requested technical companies required the dealing with and storage of categorized info, one of many cross/fail necessities was that the suppliers have Facility Security Clearance (FSC); The FSC requirement is on the coronary heart of Gateway’s protest.
The RFP required the company to guage the FSC requirement on a cross/fail foundation by figuring out whether or not a vendor’s FSC meets the necessities outlined within the Department of Defense Contract Security Security Classification Form (DD Form 254 ) that accompanies the request. ID. at 77; RFP, connect. 1, DD Form 254. Bidders have been required to satisfy the necessities set out in DD Form 254 on the time of submitting a bid. ID. During the assessments, the company carried out an FSC verification assessment and discovered that whereas Gateway holds a secret-level safety clearance, Gateway doesn’t have a “document security clearance” – particularly, the flexibility to obtain, retailer and generate categorized info — one of many in DD Form 254. AR, Tab 3, Checklist of Facility Verification Notification necessities specified beneath 1; Statement from the Contracting Officer (COS) beneath 5. As a consequence, the Agency withdrew Gateway’s proposal for non-compliance with the FSC requirement. AR, register 6, supply choice resolution doc at 2-3. The company awarded McLaughlin the contract for $33,310,037 and notified Gateway the identical day. After Gateway requested and acquired a debriefing, she filed the instant protest.
Gateway argues that the company was incorrect to reject their proposal as a result of the RFP didn’t require distributors to carry a facility launch assurance doc, which Gateway says is a separate requirement from an FSC. Protest to 1, 7. Gateway alternatively argues that it’s the duty of a vendor to have a safety clearance doc. ID. at 10.
We discover Gateway’s protest unfounded. When reviewing protests towards allegedly inappropriate rankings, our workplace examines the recordings to find out whether or not the company’s judgment was cheap and in step with the ranking standards of the solicitation and relevant legal guidelines and rules. Tridentis, LLCB-418690.4, January 5, 2021, CPD 2021 § 186 at 6.
Here we observe that the solicitation particularly requires distributors to have a doc securing the ability on the time of bidding. The FSC cross/fail criterion of the RFP states: “The government will verify that the provider’s facility clearance meets the level specified in DD Form 254 using government sources for all CAGE [commercial and government entity] provided codes.” RFP at 77.
The DD Form 254, in flip, contained two references to requesting a doc safety facility launch. First, Block 1 of DD Form 254, entitled Clearance and Safeguarding, required the contractor to have two separate safety clearance objects. DD Form 254, Block 1. Block 1(a) requires possession of an FSC classification for every facility for use throughout contract efficiency and Block 1(b) – individually – requires possession of a classification clearance for ” Safeguarding For categorized info/required materials At the contractor’s facility.” ID. (emphasis added). This second ingredient requires the seller to have the flexibility to safe categorized info on the contractor’s facility – in different phrases, a doc securing the clearance of the ability.
Second, discipline 11 of DD Form 254 gives that the contractor “receives, stores and generates classified information or materials” in efficiency of the contract. DD Form 254, field 11. Logic dictates that as a way to obtain and retailer categorized info or supplies, the contractor should have an permitted facility safety doc.
Gateway has neither argued nor demonstrated that it had any doc defending the ability on the time the bid was submitted. In this context, since Gateway has not demonstrated that it has a doc securing facility clearance required to show an FSC clearance, we conclude that the Agency was proper to reject its proposal as unacceptable because it doesn’t meet the FSC necessities tender. Additionally, in mild of the above dialogue, we conclude that as a result of the RFP particularly required distributors to have an FSC in place on the time of bid submission, Gateway’s failure to have the required FSC in place on the time of bid submission, a matter of its providing was acceptance, not the corporate’s duty. Tridentis, LLC, supra.
Gateway additionally argues that the company wrongly thought-about its transition plan unacceptable (the transition plan was one other cross/fail issue of the RFP) and that the company’s resolution to pick out the lowest-cost supply was inappropriate. Protest at 9, 11.
Competitive prejudice is an important ingredient of a viable protest and we’ll solely uphold a protest if the protester demonstrates that, however for the company’s improper actions, they might have had an affordable probability of profitable the award. Facility Services Management, Inc., B-418526, B-418526.2, 20 May 2020, 2020 CPD ¶ 180 at 4. Because we discovered that Gateway’s proposal was duly dropped for failing to satisfy the FSC requirement and the RFP gave an unsatisfactory rating for one if the 5 cross/fail necessities would render a proposal unsuitable for awarding the duty order, Gateway’s proposal is ineligible for award whatever the deserves of its remaining challenges. As a consequence, Gateway can not show that its proposal was impacted by these remaining points and we don’t want to analyze them additional. TASC, Inc., B-412674.2, B-412674.3, 25 August 2016, 2016 CPD ¶ 230 at 7 (the protester can not present prejudice if the authority has fairly decided that the protester is in any other case ineligible for an award).