NTT Data Services Federal Government, LLC

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.

Decision

Matter of: NTT Data Services Federal Government, LLC

File: B-421708.3; B-421708.4

Date: November 27, 2023

DIGEST

1. Protest that the agency unreasonably evaluated the proposals of the protester and the awardee is denied where the record shows that the evaluation was consistent with the content of the firms’ proposals, and with the terms of the solicitation.

2. Protest that the agency disparately evaluated the proposals of the protester and the awardee is denied where the record shows that the agency equally evaluated the proposals in accordance with the terms of the solicitation.

3. Protest that the agency conducted a flawed best-value tradeoff analysis is denied where the record shows that the selection authority’s comparisons were meaningful and reasonably based on the agency’s evaluation of the competing proposals

NTT DATA Services Federal Government, LLC, of Herndon, Virginia, protests the issuance of a task order to Digital Management, LLC, (DMI) of Bethesda, Maryland, under request for task order proposals (RFTOP) No. 75D301-23-R-72589, issued by the Department of Health and Human Services, Centers for Disease Control and Prevention (CDC) for on-site software application hosting services. NTT contends that the agency unreasonably and disparately evaluated proposals and made a flawed best-value tradeoff analysis.

We deny the protest.

BACKGROUND

On March 6, 2023, the CDC issued the RFTOP to procure on-site software application hosting and monitoring services for its data centers in Atlanta, Georgia, under the General Services Administration’s Alliant 2 multiple award indefinite-delivery, indefinite-quantity contract. Agency Report (AR), Exh. 16, RFTOP amend. 2 at 1, 7; Contracting Officer’s Statement (COS) at 1.[1] For the last six years and over the course of two previous task orders, NTT has been the incumbent contractor. COS at 18.

The solicitation’s performance work statement (PWS) explained that the CDC is an information intensive organization, and its dependence on information technology (IT) systems, electronic communications, and digital media is growing rapidly. AR, Exh. 16, RFTOP amend. 2, PWS ¶ 1.2. As a result, the PWS emphasized that the CDC is undergoing IT modernization to continue to support public health programs. Id.; PWS ¶ 1.4. Currently, 80 percent of the CDC’s IT portfolio exists in its on-premises data centers. PWS ¶ 1.4. However, the CDC is in the process of reducing its dependence on these data centers and moving some of its IT portfolio to a public cloud server as its first step towards creating the technological infrastructure it needs. Id. Consequently, the requirements in this task order regarding the modernization and innovation of the CDC’s on-site application hosting services are significantly different from the requirements in the last two task orders. COS at 18.

The RFTOP contemplated the issuance of a task order to be performed over an 8-month transition-in period, a 1-year base year, and two 1-year option periods. RFTOP at 73. Award was to be made to the contractor offering the best value to the government considering two factors: technical and cost/price. Id. at 79-80. The technical factor included four subfactors, in descending order of importance: application hosting approach; staffing plan; similar experience; and transition-in plan. Id. at 80. The technical factor was evaluated based on an adjectival rating scale of outstanding, good, acceptable, marginal, or unacceptable, and cost/price was evaluated for balance and reasonableness. Id. at 80-81. The technical factor was more important than cost/price. Id. at 79.

As relevant here, the application hosting approach subfactor required offerors to provide a comprehensive description of their services and processes, benefits to the agency, critical success factors, lessons learned, and potential changes to current processes in accordance with the requirements of the PWS. Id. at 76. This subfactor also required that each offer “shall include a description of technology, best practices, innovations, automation, and efficiencies with respect to delivering application hosting services.” Id. at 77. The evaluation methodology for this subfactor stated that proposals would be evaluated in part based on the inclusion of proposed innovations in an offeror’s application hosting approach. Id. at 82.

On May 19, the CDC made award to DMI and notified the other offerors. COS at 1. NTT filed a protest with our Office on May 30 challenging the award, asserting that the agency improperly evaluated proposals and made an improper best-value tradeoff determination. NTT Data Services Federal Government, LLC, B-421708, June 9, 2023 (unpublished decision) at 1. The agency subsequently notified our Office of its intent to take corrective action by canceling the current award, reevaluating all proposals in accordance with the solicitation’s evaluation criteria, making a new best-value tradeoff determination, and issuing a new award decision. Id. Accordingly, we dismissed the protest as academic on June 9. Id.

The agency reevaluated proposals in accordance with the terms of its corrective action. Of the four offerors that submitted proposals, one was found technically unacceptable, and the evaluation results for the remaining three offerors were as follows:

	NTT	Offeror A	DMI
Application Hosting Approach	Good	Outstanding	Outstanding
Staffing Plan	Good	Outstanding	Outstanding
Similar Experience	Outstanding	Good	Good
Transition-In Plan	Outstanding	Good	Good
Overall Technical	Good	Outstanding	Outstanding
Cost/Price	$25,527,320	$30,425,704	$27,030,380

 

AR, Exh. 12, Technical Evaluation Panel (TEP) Consensus Summary at 3; AR, Exh. 10, Award Decision Memorandum at 2.

As relevant here, the TEP assigned NTT’s proposal numerous significant strengths and strengths under all technical subfactors. However, the TEP also assigned NTT’s proposal one weakness under the technical factor’s application hosting subfactor for failing to include a description of technological innovations as required by the PWS. AR, Exh. 12, TEP Consensus Summary at 7-9.

In the summary of its findings, the TEP explained that the proposals of Offeror A and DMI received higher overall technical ratings than NTT’s in part because their proposals provided application hosting approaches that included technological innovations aligned with the agency’s modernization and innovation requirements, which reduced the risk of unsuccessful performance due to insufficient or outdated technology. Id. at 1-2. Conversely, the TEP found that NTT’s proposal essentially proposed to use the same technology it has used over the past six years, which increased the risk of unsuccessful performance due to outdated technology. Id.

The contracting officer, serving as the source selection authority (SSA), reviewed the TEP’s findings and concurred with them. With regard to NTT’s proposal, the SSA acknowledged that while its application hosting approach demonstrated many positives as reflected by its assigned significant strength and strengths, these positives were ultimately offset by NTT’s failure to address the requirement to propose technological innovations. AR, Exh. 10, Award Decision Memorandum at 7. The SSA explained that the agency is modernizing all of its existing technology, and NTT’s plan to continue using existing technology only presents a risk of unsuccessful performance. Id.

The SSA then compared the offerors’ prices and weighed them against the non-price factor ratings. The SSA noted that while NTT proposed the lowest price and its proposal received an overall good rating supported by many strengths, its failure to propose technological innovations created a risk of unsuccessful performance. Id. at 8-9. The SSA then determined that while Offeror A’s proposal was highly rated, its rating did not justify its significant price premium as compared to DMI’s proposal which was equally rated and lower-priced. Id. Lastly, the SSA determined that while DMI’s proposal came at a modest price premium compared to NTT’s, DMI’s proposal was technically superior in its overall rating and it proposed modernization and technological innovations as required. Id. at 9. For these reasons, the SSA concluded that DMI’s proposal provided the best value to the government. Id. at 10.

On August 28, the CDC again made award to DMI and notified NTT the same day. This protest followed.[2]

DISCUSSION

NTT raises numerous challenges to the agency’s evaluation. NTT first argues that the agency unreasonably evaluated its and DMI’s proposals under the application hosting approach subfactor. [3] NTT next argues that the agency disparately evaluated it and DMI’s proposals. Finally, NTT argues that the agency conducted a flawed best-value tradeoff analysis.

We have reviewed all of these challenges and conclude that none provide us with a basis to sustain the protest. To the extent we do not discuss a particular challenge, it is denied. At the outset, we note that, in reviewing an agency’s evaluation of proposals and source selection decision, it is not our role to reevaluate submissions; rather, we examine the supporting record to determine whether the evaluation and decision were reasonable, consistent with the stated evaluation criteria, and adequately documented. Peraton, Inc., B-420918.2, B-420918.3, Dec. 8, 2022, 2022 CPD ¶ 311 at 3-4. A protester’s disagreement with the agency’s evaluation judgments, or with the agency’s determination as to the relative merits of the competing proposals, does not establish that the evaluation or source selection decision were unreasonable. Id.

Application Hosting Approach Subfactor

NTT’s Proposal

NTT asserts that the agency unreasonably assigned its proposal a weakness under the application hosting approach subfactor for failing to propose technological innovations. NTT argues that the requirement for technological innovations was a “subordinate” requirement that didn’t need to be addressed because the solicitation only mentioned the requirement for innovations once and, in any case, NTT’s approach did include technological innovations. Comments at 12-14. NTT points to four places in its proposal that it asserts demonstrate technological innovations. Protest at 19-20.

The agency responds that it reasonably assigned NTT’s proposal this weakness because the solicitation required offerors to propose technological innovations and NTT failed to do so. MOL at 30. The agency also responds that the four examples NTT identifies only show that NTT intends to use the same technology it currently uses, even though its proposal superficially mentions potential “innovations.” Id. at 31-32.

First, we are not persuaded by NTT’s argument that the requirement for technological innovations was “subordinate” or insignificant. The PWS explained that the CDC must modernize and innovate its technology going forward and move away from relying on its current technology in order to continue to accomplish its mission. PWS ¶ 1.2; ¶ 1.4. Further, the RFTOP expressly required offerors to propose technological innovations as part of their application hosting approach. It stated that offerors’ proposals “shall include a description of technology, best practices, innovations, automation, and efficiencies with respect to delivering application hosting services, including assumptions and rationale.” RFTOP at 77 (emphasis added). The evaluation methodology for this subfactor also stated that the agency “will evaluate the Offeror’s proposed Application Hosting solution including . . . innovations.” Id. at 81-82 (emphasis added). To help demonstrate the importance of technological innovations to the agency, the contracting officer also explains that NTT’s failure to propose technological innovations “delays the implementation of current technology and leaves CDC reliant” on current systems, which would increase operational expenses and delays and potentially increase the cost for modernizing once it became necessary or inevitable. COS at 18.

For an interpretation of solicitation terms to be reasonable, a solicitation must be read as a whole and in a manner that gives effect to all of its provisions. General Dynamics Mission Systems, Inc., B-416181, July 2, 2018, 2018 CPD ¶ 220 at 13. Where the reasonableness of the evaluation turns on the agency’s interpretation of a solicitation provision, the agency’s interpretation of the provision must be consistent with the solicitation when read as a whole and in a reasonable manner. Id. Here, the protester’s interpretation that the requirement to propose innovations is insignificant because the solicitation only used the word “innovation” once is not only incorrect, (see RFTOP at 77, 81-82) but is also inconsistent with the solicitation as a whole because the solicitation made clear that technological innovations were important to the agency as it modernizes its technology.

Second, we are also not persuaded that the agency unreasonably determined that NTT’s proposal did not provide technological innovations. In this connection, NTT identifies an example from its proposal where it proposed the use of the middleware [DELETED] tool [DELETED]. NTT’s proposal states “We will configure and maintain [DELETED] and [DELETED] tools such as [DELETED], an innovation NTT DATA introduced to CDC.” AR, Exh. 14, NTT Technical Volume at 14. NTT’s proposal also states that its middleware administrators will support “innovation [DELETED] tools such as [DELETED] to streamline middleware installation, operations, and maintenance procedures” which “benefits CDC by significantly reducing administration time while preserving the security posture.” Id. at 18. Another example cited by NTT is its proposed use of [DELETED]. NTT’s proposal stated it developed “[DELETED] to prepare and review hourly space capacity (e.g. capacity as percent) reports and monitor file health” and “NTT DATA can develop [DELETED] to monitor [DELETED] and [DELETED] when the threshold is reached” to drive innovation. Id. at 28.

The agency argues that both [DELETED] and [DELETED] are technologies NTT already uses and therefore they are not considered innovative offerings. Memorandum of Law (MOL) at 31-32; COS at 19-20. The protester concedes that it already uses [DELETED] and [DELETED], but nevertheless insists that its proposed use of them meets the PWS requirements for innovations. Comments at 14.

As NTT offers no support for its rebuttal that its continued use of [DELETED] and [DELETED] meets the requirements for innovations, and our review of its remaining examples similarly shows a continued use of current technologies, as opposed to innovative technologies, we conclude that NTT has failed to show that the agency unreasonably determined that its proposal did not offer innovative technologies. Therefore, we find no basis to object to the agency’s assessment of a weakness. MVL-SAQA JV LLC, B-415610, B-415610.2, Feb. 1, 2018, 2018 CPD ¶ 91 at 12.

NTT next asserts that the agency should have assigned its proposal a significant strength under the application hosting approach subfactor because its approach has met or exceeded the agency’s requirements for the last six years. Protest at 21. NTT cites numerous portions of its proposal that present positive statistics regarding its ability to meet or exceed the requirements for a variety of tasks. AR, Exh. 14, NTT Technical Volume at 5, 39. The agency responds that it did assign NTT’s proposal a significant strength under this subfactor for its approach. MOL at 33-34. Indeed, the TEP noted that NTT provides an approach that includes a mature management methodology that will provide “positive programmatic impacts and outcomes” and reduce risk and increase the likelihood of successful performance, and as the incumbent, NTT has a “vast knowledge of the services, requirements and processes” necessary to meet the agency’s requirements. AR, Exh. 12, TEP Consensus Summary at 7. NTT responds that the significant strength the agency assigned was only for its experience as the incumbent, and not for its proposed approach, which merited another significant strength because its experience as the incumbent is separate from the excellence of its approach. Comments at 16.

First, we do not agree with NTT that the agency assigned this significant strength because of NTT’s experience as the incumbent. While the agency did acknowledge that NTT has knowledge of the requirements necessary to meet them, this comment was tied to the agency’s finding that NTT’s knowledge is evinced by its approach that has been well developed and will yield positive outcomes and reduce risk. Therefore we conclude that the record shows that the agency assigned the significant strength on the basis of NTT’s approach. Second, to the extent that NTT argues that it should have received a significant strength for its experience under the application hosting subfactor, we find that the agency was not required to reach any findings related to experience under this subfactor because this subfactor required offerors to describe their approach to application hosting as discussed above, not demonstrate their experience with it. As a result, we find that the protester has failed to demonstrate that the agency’s assessment of one significant strength for its approach instead of two was unreasonable. Id. at 5. Moreover, we have explained that a protester’s apparent belief that its incumbent status entitles it to higher ratings provides no basis for finding an evaluation unreasonable, as there generally is no requirement that an offeror be given additional credit for its status as an incumbent, or that the agency assign or reserve the highest rating for the incumbent. Bluehawk, LLC, B-421201, B-421201.2, Jan. 18, 2023, 2023 CPD ¶ 43 at 11.

DMI’s Proposal

NTT argues that the agency unreasonably assigned DMI’s proposal two significant strengths under the application hosting approach subfactor for its approach to PWS task 4 - middleware administration. We address each argument in turn.

The PWS stated that the work to be performed consisted of 10 tasks, and task 4 encompassed middleware administration.[4] PWS ¶ 1.4. The scope of this task included general middleware administration, middleware documentation, and account management. PWS ¶ 2. This task included 34 specific roles and responsibilities the contractor was to fill and perform. PWS ¶ 3.4.1.

In evaluating DMI’s proposal, the TEP noted that DMI described its management approach to middleware administration “with sufficient straightforward narrative and visual artifacts.” AR, Exh. 12, TEP Consensus Summary at 4. The TEP also noted that DMI’s approach demonstrated a familiarity with application platforms [DELETED] and [DELETED], and ways to make them work in cloud environments in accordance with the agency’s plans to move more of its technology to the cloud. Id. The agency determined that each of these features merited a significant strength as they increase the likelihood of successful performance and demonstrate an understanding of the agency’s needs and the ability to meet them. Supp. COS at 3.

NTT first argues that the agency unreasonably assigned a significant strength for DMI’s approach because its proposal provides only a summary narrative and does not include any visual artifacts as referenced by the agency. Supp. Protest at 4-5; Supp. Comments at 4-7. NTT also argues that while a table labeled “figure 15” in DMI’s proposal includes some of the activities to be completed and an approach to completing them, figure 15 does not meaningfully describe DMI’s methods with adequate specificity. Supp. Comments at 6. The agency responds that DMI’s narrative adequately describes its approach to middleware administration, and that figure 15 is a visual artifact that details a list of activities to be performed in accordance with the requirements of task 4 and substantively describes DMI’s approach to performing each activity. Supp. MOL at 8; Supp. COS at 3. The agency also explains that its finding regarding DMI’s approach to middleware administration incorporated a wholistic view of DMI’s proposal and not only a consideration of the portion of its proposal dedicated to middleware administration. Id.

Here, we find that the protester has failed to demonstrate that the agency’s decision to assign a significant strength for DMI’s approach to middleware administration was unreasonable. DMI’s proposal includes a narrative explaining which middleware application platforms DMI intends to provide services for and how its middleware team will operate. AR, Exh. 17A, DMI Technical Volume at 30. Figure 15 then provides in a table the specific activities required to be performed and how DMI will perform them. Id. at 31. For example, figure 15 mentions the activity of ensuring security compliance through “timely patching and upgrades,” and then explains that DMI’s team “will work with product vendors” and internal agency teams “to coordinate timely patching and upgrades.” Id. Figure 15 further explains that these upgrades “go through extensive testing” by going through numerous testing environments, and that DMI’s team updates “all available components” of middleware applications. Id.

DMI’s proposal also includes another chart and table in other portions of its proposal that each reference middleware administration to demonstrate how DMI will include meeting middleware administration tasks as part of its overall approach. AR, Exh. 17A, DMI Technical Volume at 45, 47. Finally, DMI’s proposal references middleware administration as related to other tasks and requirements throughout its proposal. Id. at 21-23, 25, 43.

Our review of the record demonstrates that DMI’s proposal contains an approach to middleware administration and incorporates that approach throughout its proposal, and that figure 15 enumerates some task 4 activities and provides a method to accomplishing them. As a result, NTT’s argument that DMI’s approach did not merit a significant strength amounts to disagreement with the agency’s evaluation as the record shows that the agency’s findings accurately reflect the contents of DMI’s proposal and it is logical that the agency would conclude that DMI’s approach increases the likelihood of successfully administering middleware services such that its approach merits a significant strength. See Cognosante MVH, LLC, B-418986 et al., Nov. 13, 2020, 2021 CPD ¶ 3 at 7-8. Accordingly, this allegation is denied.

NTT next argues that the agency unreasonably assigned DMI’s proposal a significant strength for its familiarity with the application platforms [DELETED] and [DELETED] because its proposal does not show familiarity with [DELETED] and [DELETED] or any other application platform. Supp. Comments at 3-5. The agency responds that DMI’s proposal shows familiarity with [DELETED] and [DELETED], as well as other application platforms, in its approach to middleware administration and in other places in DMI’s proposal. Supp. MOL at 4-5.

Here, we again find that the protester has failed to demonstrate that the agency’s decision to assign a significant strength was unreasonable. DMI’s proposal states that DMI understands the agency’s need for middleware applications such as [DELETED], [DELETED], and others, and that its middleware team would “provide general management, middleware documentation, Knowledge Management, implementation, and processes for proper maintenance and functioning of Middleware Infrastructure Platform Systems.” AR, Exh. 17A, DMI Technical Volume at 30. DMI’s proposal also describes updating and performing other maintenance tasks related to middleware applications such as [DELETED] and [DELETED], and finally, DMI’s proposal includes experience with [DELETED] on previous contracts. Id. at 31, 43, 54, 56.

As the record shows that DMI’s proposal addressed [DELETED] and [DELETED] several times, and tasks related to their maintenance and other application platforms, NTT’s assertion that DMI’s proposal does not show familiarity with these application platforms or others has no basis. Therefore, we deny this allegation. Cognosante MVH, supra.

Disparate Treatment

NTT argues that the agency disparately evaluated its and DMI’s proposals under the second technical subfactor - staffing plan. Specifically, NTT argues DMI’s proposal was assigned a strength for proposing to hire incumbent staff, while NTT’s proposal was not assigned a strength for proposing to retain its incumbent staff. Supp. Comments at 7-9.

The agency responds that it did assign NTT’s proposal a strength under the staffing plan subfactor for its plan to retain its current staff, as evinced by the TEP’s finding that NTT’s proposal described “a large personnel pool with deep technical knowledge and experience relevant to this Task Order” that would “reduce risk and increase successful performance because the strength signifies the offeror’s ability to support qualified staff.” Supp. MOL at 10; AR, Exh. 12, TEP Consensus Summary 8. NTT responds that receiving this strength regarding the experience of its staff is not the same as receiving a strength solely for its plan to retain its staff, and therefore NTT should have received a strength solely for its intention to retain its staff in addition to the strength it received for its staff’s experience. Supp. Comments at 9.

It is a fundamental principle of federal procurement law that agencies must treat all offerors equally and evaluate their proposals evenhandedly against the solicitation’s requirements and evaluation criteria. Bluehawk, supra at 9. Where a protester alleges unequal treatment in a technical evaluation, it must show that the differences in ratings did not stem from differences between the proposals since agencies properly may assign dissimilar proposals different evaluation ratings.

NTT’s argument is unavailing. The agency assigned DMI’s proposal a strength for its “plan to hire on incumbent staff,” and the agency expected that this would be a benefit because the incumbent staff’s experience would reduce the time needed to train and reduce the risk of a decline in the quality of service. AR, Exh. 12, TEP Consensus Summary at 5-6. Similarly, the agency assigned NTT’s proposal a strength for its staff’s experience and the resulting reduction in risk of unsuccessful performance. Id. at 8. Phrased another way, the agency concluded DMI proposed to hire incumbent staff whose experience reduces the risk of disrupted or unsuccessful performance, just as it found that NTT’s staff’s experience reduces the risk of disrupted or unsuccessful performance. Although the agency did not use the exact same language in its evaluations to assign DMI’s and NTT’s proposals a strength for proposing to use incumbent staff, the record shows that the agency identified the same benefit in the proposals; that is, the experience of the incumbent staff. Therefore, we conclude NTT has not shown that the agency failed to recognize the same benefit present in both DMI’s and its proposal, and accordingly we deny this protest allegation. Bluehawk, supra at 11.

Best-Value Tradeoff

Finally, NTT argues that the agency failed to consider and weigh the relative technical merits of the offerors’ application hosting approaches in the best-value tradeoff analysis. Comments at 18-19. The only support NTT provides for this argument is to essentially redo the agency’s best-value tradeoff analysis and assert that its strengths and weaknesses should have been weighed differently, and its proposal should have been determined to be the best value because of its technical ratings and lower price.

When a procurement provides for the award of a contract on a best-value tradeoff basis, it is the function of the selection official to perform any necessary price or technical tradeoff, that is, to determine whether a proposal’s technical superiority is worth its higher price. Bluehawk, supra at 12. A protester’s challenge to the degree of benefit that the agency would derive from a particular feature of the protester’s proposal, as compared to the benefit that would be derived from the awardee’s proposal, is a disagreement with the agency’s subjective judgment and is not sufficient to establish that an evaluation conclusion was unreasonable. Id.

We first note that NTT’s argument does not accurately reflect the record. The award memorandum shows that the SSA went into great detail to compare the qualitative and quantitative characteristics of NTT’s, Offeror A’s, and DMI’s proposals under all evaluation factors and weigh these characteristics against each other. AR, Exh. 10, Award Decision Memorandum at 2-9. Moreover, NTT’s attempt to redo the evaluation simply demonstrates disagreement with the SSA’s judgment. While NTT may disagree with the agency’s exercise of its business judgment with respect to the relative competing merits of the proposals, such disagreement, without more, provides no basis to overturn the agency’s decision. Bluehawk, supra. As such, this allegation is denied.

The protest is denied.

Edda Emmanuelli Perez

General Counsel

 

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