REDACTED_Pre-Award_Protest_-_North_American_United_Healthcare_Services_Redacted.pdf

Taft

Barbara A. Duncombe 317.713.3461 bduncombe@taftlaw.com

One Indiana Square, Suite 3500 Indianapolis, IN 46204-4609 Tel: 317.713.3500 I Fax: 317.713.3699 taftlaw.com

IMMEDIATE NOTIFICATION OF AGENCY REQUESTED

AUTOMATIC SUSPENSION REQUIRED

August 30, 2023

Via E-mail & EPDS

U.S. Government Accountability Office Office of General Counsel Attn: Procurement Law Control Group 441 G Street, N.W. Room 1139 Washington, D.C. 20548

RE: Pre-Award Protest of North American United Healthcare Services, JV, LLC ("United"), under Solicitation No. HT001523R0003, issued by the Department of Defense, Defense Health Agency ("DHA") for Medical Q- Coded Support and Services — Next Generation ("MQS2-NG")

Dear Sir or Madam:

Pursuant to the Bid Protest Regulations of the U.S. Government Accountability Office ("GAO"), 4 C.F.R. § 21.0 et seq., North American United Healthcare Services, JV, LLC ("United"), by and through the undersigned counsel, hereby files a pre-award protest based upon flaws in the above-referenced U.S. Department of Defense, Defense Health Agency ("DHA" or "Agency") Solicitation for Medical Q-Coded Support and Services — Next Generation ("MQS2- NG"). United contends a portion of the evaluation scheme in Solicitation No. HT001523R0003, as amended, is written in such a way as to not allow all offerors to be evaluated equally. The evaluation scheme allows the Agency to consider Federal government contractors prior record of performance whereas there is no similar opportunity to consider the past performance of offerors with no Federal government contracts. As such, the offerors cannot compete on a common basis.

Taft Stettinius & Hollister LLP / Taftlaw.com / The Modern Law Firm

U.S. Government Accountability Office Office of General Counsel August 30, 2023

I. The Protester

United is an SBA-approved Mentor-Protégé joint venture comprised of WJM Professional Services, L.L.C. ("WJM"), which is an 8(a), Woman-Owned Small Business ("WOSB") and Service Disabled Veteran Owned Small Business ("SDVOSB") that provides health care personnel solutions to the Department of Defense and other Federal contractors, as the protégé and Sterling Medical Associates, Inc. as the mentor. United provides medical and administrative staffing services matching highly qualified professionals medical and administrative professionals to vacancies within the Federal government. United is located at 501 Hungerford Drive, Suite P87, Rockville, MD 20850. Its telephone number is (301) 789- 2964 and its fax number is (888) 344-3233. Its email is vlane@wjmps.com. Copies of any papers in this Protest should be served on United's counsel in this matter, the undersigned, at 40 N. Main St., Suite 1700, Dayton, Ohio 45423.1

II. Timeliness & Stay

United's Protest is timely because it is a protest based on flaws in a solicitation which are apparent prior to the time set for receipt of proposals, and this Protest is being submitted before the September 1, 2023 closing date for receipt of proposals. 4 CFR § 21.2(a)(1). United is entitled to the automatic pre-award stay required by FAR § 33.104(b)(1) and the Competition in Contracting Act, 31 U.S.C. § 3553(c).

III. Interested Party Status

United is an interested party to this pre-award Protest, as defined in 4 CFR § 21.0(a)(1), because United is an actual bidder or offeror whose direct economic interests would be affected by the award of a contract or by the failure to award a contract. If the Solicitation did not contain an evaluation criteria that will result in the unequal treatment of offerors, United and the other offerors could compete on a common basis. As such, the Agency would achieve full competition, and United would have a substantial chance of receiving the award.

IV. Background

A. The Solicitation

DHA issued Solicitation No. HT001523R0003 (the "Solicitation" or "REP") on November 16, 2022. The Solicitation called on offerors willing to provide ancillary, dental, medical support, nursing, and physician services for DHA to submit proposals.2 It contemplated the award of Firm-Fixed Price Indefinite Delivery Indefinite Quantity (IDIQ) contracts in two

' Contact information for United's counsel in this matter is telephone number (937) 641-1751, fax number (937) 228-2816, and e-mail address bduncombe@taftlaw.com.

2 Exhibit A, Solicitation at 3.

August 30, 2023 business size categories: (1) set-aside for small business and (2) permitting unrestricted competition.3

The Solicitation stated that DHA intended to award up to ten contracts for each of the five Areas of Responsibility (AORs) that the Solicitation requested offerors to provide (i.e., ancillary, dental, medical support, nursing, and physician services) — creating so-called "vendor pools."4 DHA indicated that the resulting contracts would have a five-year ordering period (with dates determined at the time of award) and a five-year ordering period option.5

DHA amended the Solicitation multiple times. In its final iteration, the Solicitation required offerors to submit their proposals in three volumes:

Volume I — Administration

Volume II — Technical Capability, which called on offerors to include a Self-Scoring Technical Capability Worksheet, with supporting documentation to substantiate all items claimed;

and

Volume III — Past Performance.6

Relevant this protest, the Solicitation's requirements for Past Performance documentation for offerors varied depending on the offerors' record of prior work with the Federal government. As part of that proposal Volume, the Solicitation required offerors to submit:

1. Past Performance References (Tabs 2-6): Offerors shall provide past performance references for each AOR the Offeror intends to compete, as identified in the Offeror's Self-Scoring Technical Capability Worksheet (Attachment 2). Offerors shall submit no more than five (5) separate past performance references for each selected AOR.

Offerors may use the same past performance reference in more than one (1) AOR.

Offerors shall name each document/element of the past performance volume in accordance with the file name format identified in Table 3. Each past performance reference consists of past performance information using the PPI tool (see Attachment 7 for data required on the past performance tool); Contract Performance Assessment Reporting System (CPARS) performance evaluation, if available; Past Performance Questionnaire (Attachment 4) if required; Subcontractor/Teaming

3 Id. at 3-22 and 65.

Id. at 3, 65 and 84; see also Exhibit A, Solicitation at Technical Exhibit 4.

5 Id. at 3.

6 The last revisions to the composition of Volume III occurred in the Solicitation's Amendment 10, at 4-8 (available at Exhibit B).

August 30, 2023

Partner Consent Letter (Attachment 5) if required; and Client Authorization Letter (Attachment 6) if required.

A. Each past performance reference shall cover work in at least one (1) of the five (5) labor segments. The location of the work performed on the past performance reference does not have to be in the selected AOR.

E. All past performance references shall be for work performed by the Prime Offeror, the Prime Offeror's teaming member, subcontractor or joint venture partner. A minimum of two (2) past performance references shall reflect work performed by the Prime Offeror, as either a Prime Contractor or subcontractor for each AOR within which the Offeror is competing. If the Prime Offeror is a JV, the partners to the joint venture, in the aggregate, must demonstrate the past performance. If past performance information is provided by a subcontractor, teaming member and/or joint venture partner, those arrangements must be identified in Contractor Team Organization (Attachment 1) found in the Administration Volume (Volume I, Tab 3) of the Offeror's proposal.

i. Offerors shall provide a CPAR assessment for each past perfoimance reference that is based on work performed on a Federal Government contract when a complete performance evaluation is available in the Contract Performance Reporting System. Offerors may provide a PPQ with a CPAR assessment to demonstrate relevancy, scope, and complexity of a past performance reference only.

ii. Offerors shall provide a completed Past Performance Questionnaire (PPQ) for each submitted past performance reference when there is no complete performance evaluation available in the Contract Performance Assessment Reporting System. Offerors may utilize the format provided in Attachment 4 or provide a previously completed PPQ that includes all information required in Attachment 4. . .7

The Solicitation also indicated that the awards for the "vendor pools" would ultimately go to offerors deemed responsible, which submitted a technically acceptable proposal conforming to the requirements of the Solicitation, if the Contracting Officer had no reason to believe that the offeror would be likely to offer other than fair and reasonable pricing. The Solicitation qualified that for the purposes of this procurement, the term technically acceptable proposal referred to a proposal evaluated with:

7 /d. at 12-13.

August 30, 2023

(1) one of the ten highest self-scored, Government-validated, Self-Scoring Technical Capability Worksheets for the AOR in which the Offeror has proposed, AND

(2) a satisfactory performance confidence rating.8

(emphasis in original)

The Solicitation indicated that each AOR vendor pool would be evaluated and awarded independently.9 It also provided that the Contracting Officer could establish a competitive range for offers if the number of proposals, for each AOR vendor pool, exceeded the number at which an efficient competition could be conducted.1°

The Solicitation's evaluation methodology required DHA to conduct a three-step evaluation process, involving the DHA's review of each offeror's:

Proposal Responsiveness (Step 1) Technical Capability (Step 2) Past Performance (Step 3)11

The Solicitation made clear, however, that despite their numbering, DHA could undertake the steps in any order.I2

Of relevance to this protest, for the evaluation of Past Performance — where offerors had to get the highest confidence rating of Satisfactory to qualify for an award — the Solicitation defined its evaluation methodology as follows:

c. Past Performance (Step 3): The past performance evaluation will consider each Offeror's demonstrated recent and relevant record of performance in providing services similar to the scope and complexity of this requirement as described in the [Performance Work Statement (PWS)].

(1) The Government will review and assess no more than five (5) recent and relevant past performance references provided by the Offeror for each AOR. The Government may also review and assess recent and relevant past performance information independently obtained from other Government and commercial sources or from any source deemed appropriate.

8 Solicitation's Amendment 8 at 27 (available at Exhibit C).

9 Id.

19 Id.

11 Solicitation's Amendment 8 at 27-29.

12 M.

August 30, 2023

(emphasis added).13

The Solicitation explained, "No be considered a recent, the performance or contract completion date on the past performance reference shall not be older than five (5) years from the issuance date of this RFP. To be considered relevant, the past performance reference shall demonstrate the performance of services similar or greater in scope to the magnitude and complexity of this requirement."14 And, Satisfactory Confidence, based on the offeror's recent/relevant performance record, provides the Government a reasonable expectation that the Offeror will successfully perform the required effort.15

B. United's Efforts to Address the Unequal Treatment

After identifying a concern regarding the past performance requirements, on July 11, 2023, United emailed DHA's acquisition team with several questions about the verbiage on page 96 of the Solicitation, which stated:

"(1) The Government will review and assess no more than five

(5) recent and relevant past performance references provided by the Offeror for each AOR. The Government may also review and assess recent and relevant past performance information independently obtained from other Government and commercial sources or from any source deemed appropriate."

The questions included the following, among others:

13 Solicitation's Amendment 8 at 28.

14 Id.

15 Id. at 29.

August 30, 2023

(emphasis added).

On the same day, DHA responded stating that it would "review" the Solicitation "to determine if latent ambiguities exist" and United submitted some additional questions.16 But, DHA already changed its approach by that evening, informing United in an email that:

16 Exhibit D.

17 Exhibit E.

August 30, 2023

To date, DHA has not responded to United's concerns. Because DHA has not responded or offered any other clarification on the issue to the offerors, United submits this timely protest to GAO.

V. Grounds for Protest:

A. The Solicitation Unduly Affects Offerors with Significant Business with the Federal Government.

The government must always draft solicitations so that offerors can "intelligently prepare their proposals" and "compete on a common basis." Glob. Tech. Sys., B-411230.2, Sep. 9, 2015, 2015 CPD ¶ 16. That is because the fundamental notions of fairness require all offerors to be able to "compete intelligently and on a relatively equal basis[.]" See id.; see also U.S. Foodservice, Inc. v. United States, 100 Fed. Cl. 659, 686 (2011) ("All government procurements should be conducted on as level and fair a playing field as possible, thereby allowing all potential offerors to compete evenly with one another."). This type of even-handed competition is "ideal for the government[.]" See U.S. Foodservice, Inc., 100 Fed. Cl.

at 686. The government can, for example, maximize the number of viable offers that it can consider for a particular procurement when it conducts the competition that way — while losing out on some of those offers, when it does not.

The GAO will sustain protests against solicitations that do not provide offerors with a relatively even opportunity to compete on their own merits. See e.g., Crane & Co., Inc., B- 297398, Jan. 18, 2006, 2006 CPD ¶ 22 at *6 (sustaining a protest where the solicitation terms placed the protester at a competitive disadvantage against other firms); W. Pilot Service, B- 415732, Mar. 6, 2018, 2018 CPD ¶ 104 at * 8 (finding "credible the protesters' contentions that they are prejudiced because the task order competition for the out-of-scope work results in the offerors not competing on a level playing field" and sustaining the protest on that basis). That is particularly true in cases where the solicitation requirements can be shown to unduly restrict competition, with the overly-restrictive requirement not "reasonably necessary to meet [the government's] needs." Pitney Bowes, Inc., B-413876.2, Feb. 13, 2017, 2017 CPD ¶ 56 at *2-4.

The evaluation methodology for the Past Performance criteria in the MQS2-NG Solicitation imposes such undue restrictions. It is not unusual for a Solicitation to include that the Government may seek out other relevant information, in this case. In this case, because of the diversity of the offerors, that seemingly general statement puts Federal government contractors at a disadvantage not shared by the other offerors.

Specifically, offerors which work primarily in Federal Procurement will have a wealth of information (both recent and relevant) in CPARs, PPIRS within and outside the Agency. Offerors from other backgrounds, such as state or local procurement or commercial projects, have nothing in CPARS or PPIRS for the Agency to review. Moreover, there is

August 30, 2023 nothing comparable to these Federal databases in their markets. As such, it is unclear what, if any, past performance information the Agency could obtain independently. This is why this ordinary statement implicitly puts offerors on different footings from one another in this case.

This Solicitation seeks offerors from different backgrounds — supporting state and local Governments, or private entities — who can provide the requested services - as well as offerors which primarily support the Federal government, like United — to submit proposals.18 It also permits these different types of entities to satisfy the past performance requirements with CPARS evaluations, if they have them, for any Federal work that the offerors are relying on.19 But if an offeror does not have such a CPARS record for a particular project, the Solicitation indicates that DHA will accept PPQs to establish the offerors' past performance on other jobs.2° The Solicitation then states that while DHA will only review five "recent and relevant" past performance references that an offeror submits for each AOR, the DHA also reserves the right to "review and assess recent and relevant past performance information independently obtained from other Government and commercial sources or from any source deemed appropriate."21

In reserving its right to review and assess offerors' past performance from other Government sources, commercial sources and any other appropriate source, DHA failed to consider that there are no sources comparable to the Federal government's CPARS or PPIRS.22 Those offerors who have been working under the same NAICS code or related codes in the Federal procurement sector can quickly and easily provide a wealth of information — even within the identified recent and relevant qualifiers. In fact, while the Federal government requires contracting officers to prepare and maintain detailed records of past performance for every project, no similar or common requirement exists among state and local Governments or private entities for any type of work. Thus, contrary to the Solicitation verbiage, there is no reliable or consistent way for the Agency to "independently obtain" the same type of information about offerors without a detailed history of supporting the Federal government.23

So while DHA describes itself as having the right to "review and assess" recent and relevant past performance records of all offerors, "independently obtained from other Government and commercial sources or from any source deemed appropriate," practically speaking, this statement allows DHA to consider such information for offerors that have

18 Solicitation's Amendment 10 at 4-8.

19 Id.

20 Id.

21 Solicitation's Amendment 8 at 28 (emphasis added).

22 Although the Past Performance Information Retrieval System (PPIRS) was retired in 2019, 2019 is still within the period of recency.

23 But see id.

August 30, 2023 historically supported the Federal government rather than other entities (e.g., state and local Governments or private organizations).24

That, of course, leads to inequity. Under such a disparate evaluation scheme, offerors with many records of past performance from the Federal government, including United, are held to a higher standard than their competition — because DHA has more past performance information to consider. In fact, even where the offerors' five recent/relevant references for each AOR are comparable, the offeror with a history of Federal contracts is disadvantaged because the Agency has more past performance data to consider.25 Conversely, it is much more difficult for DHA to locate the same magnitude of information from commercial sources.

The Solicitation requirement for an offeror to receive a Satisfactory confidence rating

— the highest possible — under Past Performance for any award only serves to magnify the issue further.26 So does the limit of ten awards for each AOR.27 Per the Solicitation, DHA will give each offeror a confidence rating based on its assessment of the recency, relevancy, and quality of performance of each offerors' past performance record. But if DHA has access to a comprehensive data base of past performance records for one category of offerors but not for the other categories of offerors, its evaluation of those offerors' past performance is naturally skewed. The offending wording in the current Solicitation affords DHA the discretion to impact the past performance confidence rating for more than simply one offeror.

Indeed, it could result in a perfectly capable Federal contractor offeror, that has the same history of performance as an offeror that has worked with state and local Government or private entities, being knocked out of the competition due to CPARS history that DHA "independently obtained," only because similar records do not exist for its non-Federal contractor competitors. Given that the offerors with the longer history of supporting the Federal governments are likely the ones with the most relevant records for the solicited service, such an undue restriction on competition makes little sense.

Simply put, this is not an example of a Solicitation that allows offerors to compete "on a relatively equal basis." See Glob. Tech. Sys., B-411230.2, Sep. 9, 2015, 2015 CPD

16. GAO should sustain this protest as a result and direct DHA to revise the Solicitation in a way that will treat offerors the same.

24 id.

25 Given the frequency of CPARS, it is much more likely for a contractor to have some less favorable reviews for various reasons not knowable from the contents of the CPARS itself. Similarly, it is much more common for Government evaluators to not read beyond the CPARS itself 26 Solicitation's Amendment 8 at 27.

27 United recognizes that DHA can go beyond the limit of ten awards in the case of a tie in the ratings for the Technical Approach amongst the offerors, but notes that the Satisfactory confidence rating for Past Performance is still a requirement even in that case. See id.; see also Exhibit A, Solicitation at 3, 65 and 84.

August 30, 2023

B. Prejudice

Competitive prejudice is an essential element of every viable protest and the GAO will sustain a protest only where the protestor demonstrates that, but for the agency's improper actions, it would have had a substantial chance of receiving the award. DRS ICAS, LLC, B-401852.4, B-401852.5, Sept. 8, 2010, 2010 CPD ¶261 at 21. Here, DHA's failure to amend the past performance requirements prevents offerors that have mostly supported the Federal government from competing on a relatively equal basis. See W. Pilot Service, B- 415732, Mar. 6, 2018, 2018 CPD ¶ 104 at *8. As that type of competitor, United is competitively prejudiced by DHA's actions. See Crane & Co., Inc., B-297398, Jan. 18, 2006, 2006 CPD ¶ 22 at *6.

Since the GAO resolves any doubts regarding competitive prejudice in favor of the protester, and since United has shown a reasonable possibility that it is prejudiced by the DHA's failure to set forth and follow an evaluation framework that treats all offerors fairly and equally, the GAO should sustain this Protest. See, Kellogg, Brown & Root Servs., Inc.- Recon., B-309752.8, Dec. 20, 2007, 2008 CPD ¶84 at 5.

C. Conclusion

The Solicitation here provides DHA with discretion to "independently obtain" past performance references beyond those cited by the offerors, such as those that it finds within the CPARS system for Federal contractors. It also requires offerors to obtain a Satisfactory confidence rating — the highest possible — for past performance to obtain an award and prevents issuing any more than 10 awards for each AOR. But there is no equivalent repository to the CPARS system, or even the requirement to maintain detailed past performance records, for other offerors competing under this Solicitation.

As a result, the discretion that DHA reserved for itself to "independently obtain" past performance information practically only extends to the CPARS system. This creates an additional hurdle that only entities that have primarily supported the Federal government must satisfy. It also prevents them from competing on a relatively equal basis with other offerors. See Glob. Tech. Sys., B-411230.2, Sep. 9, 2015, 2015 CPD ¶ 16. Because of the requirement for the highest possible confidence rating past performance for any award, it can also "unduly restrict" entities that have primarily supported the Federal government from obtaining awards — which serves no reasonable benefit since those are likely offerors with the most relevant record for the solicited service. See Pitney Bowes, Inc., B-413876.2, Feb. 13, 2017, 2017 CPD ¶ 56 at *2-4.

The GAO must sustain the protest on the basis of those flaws in the procurement, doing so will ensure that the government receives the benefit of a full and fair competition as it is supposed to.

August 30, 2023

VI. Hearing Request

United reserves the right to request a hearing, pursuant to 4 CFR §§ 21.1(d) and 21.7, in the event that the proceedings, including the submission of the Agency Report and the Agency documents, raise issues that would best be resolved by a hearing.

VII. Protective Order

Pursuant to 4 CFR §§ 21.1(d) and 21.4, United requests that the GAO issue a protective order to protect proprietary, confidential, or other protected information, including source selection sensitive material.

VIII. Requested Relief

For the reasons discussed above, United respectfully requests:

1. That this protest be sustained;

2. The GAO recommend that DHA amend the Solicitation's past performance requirements to allow offerors the opportunity to compete on a relatively equal basis and direct the agency to limit the CPARS record under its consideration to only CPARS history from DHA itself for services similar to those solicited under the Solicitation; and

3. The GAO recommend that DHA afford offerors the opportunity to submit proposals based on the clarified requirement; and

4. That the GAO award such other relief as it determines necessary, including but not limited to costs of bid and proposal preparation.

IX. Document Requests

Pursuant to 4 CFR § 21.1(d), please provide United with the following documents:

1. All documents pertaining to DHA's plans to procure ancillary, dental, medical support, nursing, and physician services under the MQS2-NG program. (This is relevant to whether offerors were given sufficient detail to compete intelligently and on an equal basis);

2. All documents related to any market research that DHA conducted for this procurement. (This is relevant to establishing the offerors that DHA expects to respond to this Solicitation and whether it set out requirements that would allow all of those offerors to compete intelligently and on an equal basis.)

August 30, 2023

3. All documents pertaining to DHA's consideration of United (and WJM's) communications regarding the past performance requirements of the Solicitation (This relevant to whether DHA has given consideration to setting out requirements that would allow offerors to compete intelligently and on an equal basis);

4. A copy of DHA's source selection plan. (This is relevant to confirm the understanding of DHA's parameters for this procurement, and to confirm whether DHA's requirements for past performance allow offerors to compete intelligently and on an equal basis.); and

5. All documents pertaining to any other relevant matter that should be produced pursuant to 4 CFR § 21.3(d).

If you have any further questions, please contact the undersigned.

Respectfully submitted, /s/ Barbara A. Duncombe Barbara A. Duncombe Suzanne Sumner Erin R. Davis Brandon E. Dobyns Alexander Gorelik Counsel for North American United Healthcare Services, JV, LLC

Enclosures: Exhibits A-E cc: Dawn E. Simington28, Contracting Officer (dhapsa.cod-sa.mbx.erns-ed-mqs2ngAhealth.mil; dawn.e.simington.civ@mail.mil)

28 The Solicitation did not identify a Contracting Officer by name. But it did include the first email referenced for offerors' submission of "all questions, clarification requests, and/or concerns regarding this solicitation."

Exhibit A, Solicitation at 66. The Procurement Integrated Enterprise Environment (PIEE) website providing the Solicitation appears to identify the Contracting Officer as Dawn Simington. Upon United's best information and belief, Ms. Simington can also be reached at dawn.e.simington.civ@mail.mil.