1. Bio-Sensor Virus Detector (BSVD) Program (50 points)

DECISION Mizner BioPHARM, Inc.,("Mizner') of Richmond, Virginia, protests the issuance of a Blanket Purchase Agreement and underlying task order request for proposals (TORP) to Puritan Solutions, Inc., ("Puritan") of Gambrills, Maryland, issued by the Department of Health and Human Services, National Institutes of Health (NIH), for its Bio-Sensor Virus Detector (BSVD) Program. The protester challenges various aspects of the agency's source selection process, including the agency's evaluation under the technical and past performance factors and the agency's best-value tradeoff decision.

BACKGROUND On March 18, 2020, the agency issued the TORP, pursuant to Federal Acquisition Regulation Part 15. Specifically, the contractor will be required to develop an automatic virus detection system/sensor. The device must be able to detect the presence of certain types of viruses, in particular avian flu, COVID-19, and biological agents. A total of four (4) fully compliant, working prototypes are required to be delivered under this contract no later than 200 days after award. The contractor was to provide all necessary services, including various information development and dissemination services, as well as qualified personnel, material, equipment, and facilities. The TORP contemplates the issuance of multiple time-and-materials and/or cost reimbursable task orders for a base year and four 1-year option periods. The TORP provided for award on a best-value tradeoff basis, considering three factors, listed in descending order of importance: technical, past performance, and cost/price. The TORP advised that the technical and past performance factors, when combined, were significantly more important than the cost/price factor. Under the technical factor, the TORP provided that the agency would assign up to 100 possible points to proposals based on four components: technical approach and understanding (45 points), staffing and management (45 points), facilities (10 points). Of relevance here, for the staffing and management component, the TORP advised that offerors "should demonstrate the availability of experienced, qualified staff and a feasible plan for organizing and managing the tasks in the [statement of work (SOW)]." The SOW described, among other things, a list of anticipated "communications-related website development and enhancement projects" that the contractor "shall support and carry out." Under the past performance factor, the TORP provided that the agency would consider various aspects of the offeror's existing and prior contracts, including relevancy and quality. The TORP advised that the agency would assign an overall adjectival rating under this factor with "excellent" as the highest rating, and that the agency's evaluation would be "the product of subjective judgment by the government[.]" Of relevance here, the TORP included a list of several areas of expertise and experience that "[r]elated work may include, but not [be] limited to," for the agency's consideration. On or before the closing date, the agency received proposals from Mizner and Puritan. The agency evaluated the proposals and selected Puritan for the award. Mizner filed a protest with our Office challenging, among other things, the agency's evaluation of proposals, discussions, and award decision. The agency took corrective action, and we dismissed the protest as academic. After the agency's first round of corrective action, which included reevaluating the proposals and affirming its award to Puritan, Mizner filed a second protest. The agency then evaluated the Proposals as follows:

Company Technical Staffing Facilities Past Performance Price Mizner 42 42 10 Excellent $86,545,716 Puritan 40.5 42 10 Good $82,561,975

The agency assessed various significant strengths and one weakness, in each proposal. Specifically, the agency assessed a weakness in both proposals under the staffing and management component based on their responses to a requirement to conduct and support a project described in the SOW. Based on the evaluation, the evaluators' award recommendation, and "a detailed review of the positives and negatives associated with each proposal and special attention to the discriminating attributes of the proposals," the contracting officer concluded that Puritan Solutions offered the best overall value under the terms of the TORP.

1) Should the award be sustained or overturned? 2) What are the protestable grounds for Mizner? 3) Please describe the winning argument to be made for granting the protest and overturning the award? 4) Explain the "best value" award based on the information you know for Puritan? How do you think the Government came to that decision? 5) What additional information would assist in deciding or making a determination?

2. Employment Data Collection & Processing Services (50 points)

DECISION Primrose Consulting, Inc., ("Primrose") a small business located in Rockville, Maryland, protests the award of three contracts to TheForce, LLC, ("TheForce") a small business located in Augusta, Georgia, under request for proposals (RFP) No. 1875DC-20-Z-00054, issued by the Department of Labor (DOL) for employment data collection and processing services. The protester argues that the agency improperly revived TheForce's extinguished proposal, unreasonably evaluated "best value" and had a faulty tradeoff process.

BACKGROUND On September 25, 2020, DOL issued the RFP seeking the award of three contracts for data collection and processing services for the job opening and labor turnover survey data collection center (JOLTS), the current employment statistics data collection center (CES), and the electronic data interchange center (EDI) respectively. The solicitation anticipated that the agency would award three CLINS under one hybrid fixed-price/labor-hour contract with a 1-year base period and four 1-year options. The RFP contemplated the evaluation of three factors, in descending order of importance: technical capability, past performance, and price. While the non-price factors when combined were more important than price, the solicitation cautioned that DOL would not award the contract at a significantly higher overall price to achieve slightly superior technical features. For the evaluation of technical capability, the agency anticipated evaluating four subfactors for each contract: experience, management plan, quality control plan, and phase-in plan. The solicitation permitted offerors to identify the same experience for both CES and JOLTS as DOL considered these requirements "similar in nature." For the evaluation of past performance, the RFP required offerors to identify three references for each project; offerors were again permitted to identify the same references for the CES and JOLTS requirements. Offerors intending to subcontract any portion of the requirement were to provide two references for each subcontractor. The solicitation contemplated a single-phase process for awarding the contracts to a single offeror for the three data centers and conduct a best-value tradeoff. DOL received seven proposals. The agency evaluated these proposals and conducted discussions. DOL issued solicitation Amendment 1, updating the pricing updating the pricing submission workbook and requesting the submission of revised proposals. Then the agency notified offerors of its intent to award the contract to TheForce. Primrose then filed a small business size protest challenging TheForce's status as a small business. While awaiting the resolution of TheForce's appeal, DOL issued Amendment 2 and requested revised proposals from offerors. The Amendment changed the initial period of performance from one year to six months, included an additional option period of six months, and requested revised pricing sheets from offerors. DOL then issued Amendment 3, which corrected two spreadsheets and a wage determination included with Amendment 2. TheForce's appeal was granted and was confirmed a small business under the applicable size standard. DOL then issued RFP Amendment 4 which stated: This Amendment is in accordance with [Federal Acquisition Regulation (FAR)] 15.206(c). This Amendment will hereby cancel/withdraw Amendments 2 and 3. Amendments 2 and 3 were created due to the expected time impact of the pending size protest. The Government sought to obtain updated pricing based on an alternative schedule of performance (e.g. Base Period of Six Months rather than Twelve Months and inclusion of Option Period V). However, the Government has determined that such alternative scheduling does not meet its needs and is withdrawing Amendments 2 and 3 to return to the originally proposed contract schedule. That same day, the contracting officer contacted TheForce's chief operating officer, and "indicated that [DOL was] going to send to TheForce the contract based upon their offers after in accordance with Amendment 1 and that they would shortly receive the contracts for their consideration." The same day, the agency notified Primrose of the contract awards to TheForce. Primrose filed a protest of the award. The protester challenged the agency's evaluation of proposals and its discussions with offerors and argued that DOL erred in awarding the contracts based on proposals that were no longer valid due to a subsequent round of proposal submissions. An additional argument regards the Best Value Award as Primrose challenges the tradeoff decision and believes the award was flawed and unreasonable and it should be awarded. Proposals were rated as follows:

Contractor Technical Past Performance Price Primrose Outstanding Substantial Confidence $117,711,604 TheForce Good Substantial Confidence $100,354,733

1) Should the award be granted or overturned? 2) What are the protestable grounds for Primrose? 3) Please describe the winning argument to be made for granting the protest and overturning the award? 4) Explain the "best value" award based on the information you know for TheForce? 5) What additional information would assist in deciding or making a determination?