October 19, Cyrus E. Phillips IV (757) Direct Line (703) Facsimile (703) Mobile

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1 October 19, 2015 Cyrus E. Phillips IV (757) Direct Line (703) Facsimile (703) Mobile VIA ELECTRONIC MAIL Matthew T. Crosby Office of General Counsel U.S. Government Accountability Office PLCG 441 G. Street, N.W. Washington, D.C Re: B , Protest of Sapient Government Services, Inc. Under Department of Homeland Security, United States Citizenship and Immigration Services, Solicitation Number HSSCCG-15-R Dear Mr. Crosby: We represent Sevatec, Incorporated (Sevatec) in this Post-Award Procurement Protest. Sevatec is a Virginia for-profit Corporation whose Office is located at 2815 Old Lee Highway, Fairfax, Virginia With respect to the challenged Award under Solicitation Number HSSCCG-15-R-00003, Sevatec is an interested party just as that term is defined in 31 U.S.C. 3551(2)(A). Sevatec is the Awardee of the Task Order Contract for the Customer Services Portfolio proposed by Solicitation Number HSSCCG-15-R Grounds of Sapient Government Services, Inc. s (Sapient s) Post-Award Procurement Protest of September 25 th, 2015 are untimely filed under 4 C.F.R. 21.2(a)(2) (ecfr, October 15 th, 2015). Sevatec asks for their dismissal. REDACTED VERSION

2 The Solicitation here in issue sought Competitive Proposals for four different services Portfolios: Records, Benefits, Customer Service, and Biometrics. Each Portfolio would be awarded as a Task Order. The required services for each Portfolio were set forth in separate Performance Work Statements (PWS s). Sapient substitutes its judgment for that of the Agency, asserting that Sapient, not Sevatec, submitted the Competitive Proposal providing the best value to the Agency. Sapient says that the Agency conducted outcome determinative oral presentation sessions that bore no rational relationship to the PWS of the Customer Service Portfolio.... Sapient Post- Award Procurement Protest, September 25 th, 2015 (Protest), page 2 of 29. Sapient s Oral Presentation was conducted on July 15 th, Sapient was presented seven written questions, and three follow-up questions prefaced with references to assertions earlier made by Sapient during its Oral Presentation. Sapient did not challenge the content of these ten questions until it filed this Post-Award Procurement Protest on September 25 th, Now Sapient says: The Agency arbitrarily evaluated Sapient based on oral presentation questions that bore no rational relationship to the statement of work for Sapient s portfolio, or to Sapient s proposal. Protest, page 15 of 29. The timeliness Rule is clear: Protests... shall be filed not later than 10 days after the basis of protest is known or should have been known C.F.R. 21.2(a)(2) (ecfr, October 15 th, 2015). Challenges to the content of questions asked at an Oral Presentation must be raised within ten calendar days after that Oral Presentation else these challenges are untimely: Hyperion asserts that the sample scenario to which Hyperion was required to respond was a scenario that would have been elevated to senior management... not REDACTED VERSION - 2 -

3 left to Hyperion s technical people. Protest at 2. Accordingly Hyperion complains that the solicitation s requirement that Hyperion s technical personnel respond to the scenario created a mismatch between the solicitation requirements and the scenario on which Hyperion was evaluated. Id. This issue is untimely raised..... Here, Hyperion clearly knew of the alleged mismatch between the terms of the solicitation and the scenario to which it was required to respond at the time of its oral presentation. Nonetheless, it failed to file its protest within 10 days thereafter. On this record, its complaints regarding the agency s evaluation of Hyperion s oral presentation are not timely raised and will not be further considered. B , Hyperion, Inc., September 16 th, 2015, at 4 (Attached). Sapient knew the content of the ten questions on July 15 th, 2015, the day of its Oral Presentation, yet Sapient did not challenge the content of these questions until this Post- Award Procurement Protest was filed on September 25 th, Too late. Sevatec asks that these Protest grounds be dismissed as untimely filed. Attachment (as stated) Kind regards, ALBO & OBLON, L.L.P. /s/ Cyrus E. Phillips IV Cyrus E. Phillips IV Virginia State Bar Number REDACTED VERSION - 3 -

4 ATTACHMENT

5 United States Government Accountability Office Washington, DC Comptroller General of the United States Decision Matter of: Hyperion, Inc. File: B Date: September 16, 2015 DECISION Hyperion, Inc., of Reston, Virginia, protests the award of five indefinite-delivery, indefinite-quantity (IDIQ) contracts by the Department of Navy, Space and Naval Warfare Systems Command, under request for proposals (RFP) No. N R for Command, Control, Communications, Computers and Intelligence systems integration and engineering services. Hyperion asserts that the agency s determination not to award a contract to Hyperion was flawed because Hyperion s past performance and oral presentation were misevaluated. We dismiss the protest. BACKGROUND The RFP, issued on March 24, 2014, contained three technical evaluation factors: technical approach, past performance, and oral presentations. 1 Protest, attach. 1, RFP at The solicitation contemplated multiple awards to the acceptable offeror(s) whose proposals were determined to provide the best value to the government, price and other factors considered. Id. at 101. With regard to past performance, offerors were instructed to provide information regarding a maximum of three relevant contracts that had been performed during the prior five years. Id. at 90. The solicitation provided that the past performance evaluation would reflect the agency s assessment of the likelihood that an offeror 1 Technical approach was significantly more important than past performance and oral presentations individually, which were of equal weight. Id. at 101. The technical evaluation criteria combined were significantly more important than evaluated cost. Id.

6 would successfully perform the contract requirements, and established ratings of substantial confidence, satisfactory confidence, limited confidence, no confidence, and unknown confidence (neutral). Id. at The solicitation further provided that [i]n the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror will not be evaluated favorably or unfavorably on past performance. Id. at 103. Finally, offerors were specifically warned that: The Government does not assume the duty to search for data to cure the problems it finds in the information provided by the offeror. The burden of providing thorough and complete past performance information remains with the offeror. Id. at 90. With regard to oral presentations, the solicitation provided that each offeror would be required to develop and deliver a presentation in response to a sample scenario which would include questions about the difficulties and risks expected to be encountered during contract performance. Id. at The solicitation explained that [r]esponses will provide offerors the opportunity to demonstrate an understanding of the scope of the technical issues, problems, and possible solutions associated with the envisioned work. Id. at 91. Offerors were further advised that their oral presentation team could include a maximum of seven personnel, and were further instructed that: [f]ve (5) must be personnel from the prime/subcontractor who are listed in the cost proposal in a technical position and be dedicated at a minimum of 50% in the cost proposal. These five (5) members of the Oral Presentation team will be the only members allowed to participate in the actual Oral Presentation and during the Q&A period. Id. at 92 (bold in original). On or before the April 29, 2014 closing date, the government received 22 proposals, including the proposal submitted by Hyperion. With regard to past performance, Hyperion provided information for three contracts. However, the agency found that, for two of the three contracts, Hyperion failed to provide sufficient information regarding the quality of work or services provided. Agency Motion to Dismiss at 6. The agency states that it made repeated attempts to obtain the necessary information from Hyperion s references, but was unable to do so. Id. at 7. Accordingly, the agency assigned a past performance rating of unknown confidence (neutral) for two of the three past performance references and, based on the single reference for which information was available, assigned Hyperion s proposal an overall past performance rating of limited confidence. Protest, attach. 2, Debriefing Slides at 17. On July 30, 2015, the agency awarded five IDIQ contracts to offerors other than Hyperion, thereafter notifying Hyperion of its nonselection. This protest followed. Page 2 B

7 DISCUSSION Hyperion protests the agency s evaluation with regard to its past performance, arguing that the agency should have notified Hyperion of its inability to obtain information. Hyperion also protests that the scenario to which it responded in oral presentations was flawed. We dismiss the protest. Past Performance First, Hyperion challenges the agency s evaluation of its past performance, arguing that pursuant to Federal Acquisition Regulation (FAR) (a)(2), the agency should have notified Hyperion so that it could ensure that responses were provided, or should have given Hyperion an opportunity to provide new points of contact. Protest at 1. Our Bid Protest Regulations require that a protest include a statement of legal and factual grounds for protest that are legally sufficient. 4 C.F.R. 21.1(c)(4) and 21.1(f). Here, as noted above, the solicitation clearly stated that the agency did not assume the duty to search for data to cure deficiencies in the past performance information provided by the offerors, expressly reminding offerors that they were responsible for providing complete and sufficient information. Accordingly, to the extent Hyperion is arguing that the agency was required to give it an opportunity to cure its failure to provide adequate past performance information, Hyperion fails to state a basis for protest. Further, Hyperion s reliance on FAR (a)(2) is misplaced. FAR (a)(2) states that where, as here, an award is made without discussions, offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors. FAR (a)(2)(emphasis added). While agencies have broad discretion to seek clarifications from offerors, there is simply no requirement that offerors be permitted to provide information not included in their initial proposals. Wolverine Servs., LLC; DL LSS, Joint Venture, B et al., Oct. 23, 2014, 2014 CPD 349 at 5 (citing JBlanco Enters., Inc., B , Aug. 5, 2010, 2010 CPD 186 at 4 n.4). Here, it was Hyperion responsibility to provide complete and sufficient past performance information. Hyperion does not dispute the agency s conclusion that its proposal contained insufficient information with regard to two of the three prior contracts. On this record, Hyperion s protest challenging the agency s past performance evaluation fails to state an adequate basis for protest. Page 3 B

8 Oral Presentation Next, Hyperion complains that the agency s evaluation was flawed with regard to Hyperion s oral presentation. Specifically, Hyperion asserts that the sample scenario to which Hyperion was required to respond was a scenario that would have been elevated to senior management... not left to Hyperion s technical people. Protest at 2. Accordingly Hyperion complains that the solicitation s requirement that Hyperion s technical personnel respond to the scenario created a mismatch between the solicitation requirements and the scenario on which Hyperion was evaluated. Id. This issue is untimely raised. Under our Bid Protest Regulations, a protest based on other than alleged solicitation improprieties which are apparent prior to the time set for receipt of initial proposals must be filed no later than 10 calendar days after the protester knew, or should have known, of the basis for protest. 4 C.F.R. 21.2(a)(2). Here, Hyperion clearly knew of the alleged mismatch between the terms of the solicitation and the scenario to which it was required to respond at the time of its oral presentation. Nonetheless, it failed to file its protest within 10 days thereafter. On this record, its complaints regarding the agency s evaluation of Hyperion s oral presentation are not timely raised and will not be further considered. The protest is dismissed. Susan A. Poling General Counsel Page 4 B