REDCACTED_BAMC_protest_with_Exhibits_(fin)_-_REDCATED.pdf

Procurement Law Control Group Government Accountability Office June 7, 2019

(D) Alternatively, the use of an LPTA source selection method in this procurement violates Section 813(b) of the FY2017 NDAA and DoD SSP § C.1.

Based on any and all of these grounds, NJS’s protest should be sustained.

I. NJS’S PROTEST IS TIMELY

“To be timely, a challenge to the terms of a solicitation must be filed before the closing date for the submission of proposals.” Choctaw Staffing Solutions, Inc., B-412152.3, Aug. 24, 2016, 2016 CPD ¶ 228 at 5 (citing 4 C.F.R. § 21.2(a)(1)). The subject Procurement has a proposal deadline of June 24, 2019.2 This protest is being filed prior to the deadline for receipt of proposals, and is therefore timely.

II. NJS IS AN INTERESTED PARTY

An “[i]nterested party means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.” 4 CFR § 21.0(a)(1). “Whether a protester is an interested party is determined by the nature of the issues raised and direct or indirect benefit or relief sought.” Coulson Aviation (USA), Inc., B-411306 et al., July 8, 2015, 2015 CPD ¶ 214 at 8.

NJS is a joint venture under the SBA All Small Mentor-Protégé Program between managing venturer NuGate Group LLC (“NuGate”) and J&J Maintenance, Inc. (“J&J”), the incumbent contractor for the work covered by the BAMC procurement. NJS is supremely qualified, capable and interested in performing the work covered by this Solicitation, and NJS intends to submit a proposal in response to the Solicitation.3 For the reasons discussed below, NJS’s direct economic interests are affected by the defects in the Solicitation. As a result of the defects in the Solicitation, NJS is competitively disadvantaged. But for this defect, NJS would have a greater chance of being awarded the subject contract. Accordingly, there is a reasonable possibility that NJS is prejudiced by the improper inclusion of the LPTA source selection method in the Solicitation. Therefore, NJS is an interested party to file this protest.

III. THE AGENCY IS REQUIRED TO WITHHOLD AWARD PENDING A DECISION ON

THIS PROTEST

This Protest is being filed prior to a contract award under the Solicitation. Therefore, in accordance with FAR 33.104(b), the Agency is required to withhold award of any contract under the Solicitation while this protest is pending.

IV. BACKGROUND FACTS

A. BAMC Healthcare Housekeeping Services Contract.

BAMC is “the largest and most robust military healthcare organization within the Department of Defense (DOD).”4 “Since 2001, BAMC has played a crucial role in the provision

2 See Ex. A at 1.

4 See U.S. Army Medical Dept., Brooke Army Medical Center Facts, at https://www.bamc.health.mil/bamc-facts.asp.

of care for combat casualties wounded in either Afghanistan or Iraq. As the sole verified Level I Trauma Center within the DOD, BAMC simultaneously provides emergency services during 80,000 emergency department visits annually and serves as the premier medical readiness training platform for both the Army and the Air Force.”5 Both inpatient and outpatient services are provided by approximately 8,500 BAMC staff members, including active duty military personnel from each of our uniformed services, federal civilian employees and contractors.6 BAMC’s medical center provides safe, quality, evidence-based care for up to 483 military and civilian inpatients, and medical care is provided to 4,000 patients each day at BAMC’s five separate outpatient clinics.7 BAMC facilities provide comprehensive care for more than 240,000 military beneficiaries living throughout the San Antonio metropolitan area.8

“The mission of the Brooke Army Medical Center (BAMC) is to provide integrated quality healthcare and medical readiness support that is responsive to the needs of the Fort Sam Houston Community in safe, clean and aesthetically-pleasing facilities.”9 The subject procurement is to provide healthcare housekeeping services “that prioritize infection control while optimizing cleaning practices in support of BAMC’s mission of providing quality healthcare in safe, hygienic and aesthetically-pleasing MTFs, across 2,401,672 square feet of BAMC and multiple Medical Treatment Facilities (‘MTF’) in the health service area (‘HAS’) of BAMC.”10 In the most general terms, the work to be performed under the BAMC contract will include six support activities:

healthcare housekeeping cleaning services; control and exchange of linen; collection and transport of regulated medical waste (RMW); collection and removal of general waste (trash) collection; removal of recycle; and exterior building services (e.g., windows, doors, and walkways).11

B. Agency Issues Sources Sought Reflecting a Minimum Experience Requirement Necessary for an Offeror to be Considered Capable of Performing the Work.

On or about April 10, 2018, the Agency issued a Sources Sought notice “to determine the availability of qualified commercial sources capable of providing Healthcare Housekeeping and related services for [BAMC].”12 The Sources Sought stated that: “The agency is seeking industry information and comments from sources with capabilities to perform the contract and with relevant experience in all of the functional areas mentioned above. Interested parties shall complete and submit the attached Market Research Questionnaire and Experience Reporting Form to the Government.”13 Amongst the questions in the Market Research Questionnaire and Experience Reporting Form were:

5 See supra Note 4.

6 See supra Note 4.

7 See supra Note 4.

8 See supra Note 4.

9 See FBO, Sources Sought, W81K04-17-R-0017, at https://www.fbo.gov/spg/USA/MEDCOM/DADA10/W81K04-17-R-0017/listing.html.

10 See Ex. A at 116-117.

11 See supra Note 9.

12 See supra Note 9.

13 See supra Note 9.

- Whether or not the firm was a small business, or sub-set thereof, under the NAICS code pertaining to planned BAMC procurement.14

- “Does your firm have corporate experience comparable in a medical facility similar or larger to BAMC healthcare housekeeping services with a total of 24 months of the previous 36 months. A team member or major subcontractor may be used to satisfy this requirement.”15

As seen from the above, in order to be considered “capable” of performing the work that would be covered by the BAMC solicitation, the Agency required the prospective offeror to demonstrate that it, or its team member or major subcontractor, had a minimum threshold of recent and relevant experience.

C. Agency Issues Solicitation.

On May 8, 2019, the Agency issued the Solicitation for a “Request for Proposal (RFP)/Solicitation to provide non-personal healthcare housekeeping (Type I, II, III, IV, V and VI) and related services in support of Brooke Army Medical Center (BAMC), Joint Base San Antonio, Fort Sam Houston, Texas in support of multiple Medical Treatment Facilities (MTFs) in the Health Service Area (HSA) of BAMC, Fort Sam Houston, Texas.”16

The Solicitation’s performance of work statement (“PWS”) summarizes the objective of the work as follows: “The contractor shall provide healthcare housekeeping services that prioritize infection control while optimizing cleaning practices in support of BAMC’s mission of providing quality healthcare in safe, hygienic and aesthetically-pleasing MTFs.”17

1. As Part of Cascading Set-Aside / Rule of Two Criteria, Agency Makes Clear that an Offeror Must have Relevant Experience to be Considered Capable of Performing the Work.

Under the Rule of Two, “[c]ontracting officers generally are required to set aside for small business all procurements exceeding $150,000 if there is a reasonable expectation of receiving fair market price offers from at least two responsible small business concerns.” DNO Inc., B406256, B-406256.2, Mar. 22, 2012, 2012 CPD ¶ 136 at 4 (citing FAR 19.502-2(b)). “[A] contracting officer must make reasonable efforts to ascertain whether it is likely that offers will be received from at least two small businesses capable of performing the work.” DNO Inc., B- 406256, B-406256.2, Mar. 22, 2012, 2012 CPD ¶ 136 at 4 (emphasis added). However, “when market research is inconclusive for justifying limiting competition to small business concerns,” the DFARS authorize a contracting officer to implement a “tiered evaluation of offers,” also known as “cascading evaluation of offers” or a “cascading set-aside.” See DFARS 202.101; see also DFARS 215.203-70. Implementing a cascading set-aside effectively allows the Agency to defer its ultimate Rule of Two determination until after initial proposals are received.

14 See supra Note 9 (Question #1).

15 See supra Note 9 (Question #3).

16 See FBO.gov, BAMC Solicitation Synopsis, Updated May 8, 2019, at https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=4d8c82ff8bc80cac8a71bf4b6caf93be &_cview=0 (emphasis added); see also Ex. A.

17 See Ex. A at 117 (emphasis added).

In the Solicitation, the Agency announced that it would be using the cascading set-aside method, such that if it received offers from two or more small businesses capable of meeting all of the Agency’s criteria as set forth in the Solicitation, the Solicitation would become a total small business set-aside:

The Government will use tiered or cascading evaluation procedures in accordance with Defense Federal Acquisition Regulation Supplement (DFARS) 215.203-70, Request for Proposals - Tiered Evaluation of Offers. Consideration shall be given to small businesses before evaluating offers from other than small business concerns. Based on evaluation criteria, if the Contracting Officer determines that there are two or more small businesses capable of meeting all of the government's criteria as set forth in the RFP, the acquisition will be conducted as a small business set-aside. In such event, Federal Acquisition Regulation provision, 52.219-6 (Notice of Total Small Business Set-Aside (Deviation 2019-O0003)) shall be considered incorporated by reference. If the Government does not receive offers from two or more small businesses capable of meeting all of the Government's criteria set forth in the RFP, then there will be no set-aside and all offers, including offers from other than small business concerns, will be considered for award in accordance with the terms and condition as further required in the

RFP.18

In order to determine whether there were “two or more small businesses capable of meeting all of the government's criteria as set forth in the RFP,” the Agency required small business offerors to submit a capabilities narrative with their proposals “to demonstrate their capability to perform healthcare housekeeping services in a medical facility same or similar in size (2.3 million square feet) to Brooke Army Medical Center (BAMC) (including outlying clinics).”19 As part of this capabilities narrative, small business offerors were required to demonstrate experience performing a healthcare housekeeping services contract in a medical facility same or similar in size to BAMC – 2.3 million square feet.20 Furthermore, in pre-bid Q&As, the Agency clarified that an offeror would need to meet the 2.3 million square feet experience requirement with a single contract for a single medical facility in order to demonstrate it was capable of performing the work.21 This experience requirement is consistent with the experience requirement set forth in

18 See Ex. A at 234; see also FBO.gov, BAMC Solicitation Updated May 8, 2019.

19 See Ex. A at 234-235.

20 See Ex. A at 234-235, §§ c.1 – c.2.

21 See Ex. C at 1-2:

Q: Instructions page 234 of 276, C. “...in a medical facility same or similar in size (2.3 million square feet). Does this have to be a single facility of this size? Please elaborate completely.

A: The Addendum to 52.212-1, paragraph D.1.c., states “a medical facility same or similar in size (2.3 million square feet) to Brooke Army Medical Center (BAMC)(including outlying clinics)”.

Q: Is that 2.3 million SF one contract?

A: Yes.

Q: Is the 2.3 million for a single contract or can a contractor assemble multiple contracts performed simultaneously which add up to 2.3 million SF?

A:The Addendum to 52.212-1, paragraph D.1.c., states “a medical facility same or similar in size (2.3 million square feet) to Brooke Army Medical Center (BAMC)(including outlying clinics)” the earlier Sources Sought notice, asking firms whether they had “corporate experience comparable in a medical facility similar or larger to BAMC healthcare housekeeping services with a total of 24 months of the previous 36 months.”22

Accordingly, the Agency clearly concluded that having relevant healthcare housekeeping services experience in a medical facility similar or larger to BAMC was a minimum experience requirement (hereinafter the “Minimum Experience Requirement”) necessary to ensure the offeror was capable of performing the work under the contract.23 However, as discussed below, the LPTA evaluation criteria in the Solicitation will result in offerors who do not meet the Minimum Experience Requirement actually being deemed automatically Acceptable on the single pertinent source selection evaluation factor.

2. The Lowest Price Technically Acceptable Criteria in the Solicitation

i. Any Offeror that Fails to Meet the Agency’s Minimum Experience Requirement Will Nevertheless be Deemed Automatically Acceptable on the Single Pertinent Evaluation Factor

The Agency further stated that it would be awarding the contract under the Solicitation using the LPTA source selection method.24 In order to be deemed “Acceptable” an offeror would

Q: Can a small business combine MTFs to meet 2.3 million SF? Is 1.6 million SF realistic/relevant.

A: No, IAW the addendum to 52.212-1, paragraph D.1.c., “a medical facility same or similar in size (2.3. million square feet) to Brooke Army Medical Center (BAMC)(including outlying clinics).

No, 1.6 million mission SF does not meet the “same or similar in size” to BAMC.

22 See FBO, Sources Sought, W81K04-17-R-0017, at https://www.fbo.gov/spg/USA/MEDCOM/DADA10/W81K04-17-R-0017/listing.html.

23 See Ex. A at 234-35 (stating that analysis to be conducted is whether two or more small business offerors demonstrate they are “capable of meeting all the Government’s criteria,” that that “criteria” including the requirement that “Small business offerors shall submit a narrative that addresses the following criteria to demonstrate their capability to perform healthcare housekeeping services in a medical facility same or similar in size (2.3 million square feet) to Brooke Army Medical Center (BAMC) (including outlying clinics)” by providing details of experience on a contract “for a medical facility of same or similar size of BAMC”);

BAMC Sources Sought, supra, Note 22 (“The intent of this notice is to determine the availability of qualified commercial sources capable of providing Healthcare Housekeeping and related services for Brooke Army Medical Center (BAMC).... [Question #3] Does your firm have corporate experience comparable in a medical facility similar or larger to BAMC healthcare housekeeping services with a total of 24 months of the previous 36 months. A team member or major subcontractor may be used to satisfy this requirement.”);

see also Belleville Shoe Mfg. Company et al., B-287237, May 17, 2001, 2001 CPD ¶ 87 at 4-5 (“In determining the availability of responsible small business concerns for set-aside purposes, the contracting agency's investigation goes not only to the existence of the businesses, but also to their capability to perform the contract.”); Info. Ventures, Inc., B-279924, Aug. 7, 1998, 98-2 CPD ¶ 37 at 3 (“Contracting officers are generally required to set aside for exclusive small business participation any procurement … where there is a reasonable expectation of receiving fair market price offers from at least two small businesses capable of performing the contract requirements, FAR § 19.502-2(b).”); DFARS 202.101 (definition of “Tiered evaluation of offers” reflects that standards set in DFARS 215.203-70 provision are to be reflective of whether award can be made to a small business).

24 See Ex. A at 256.

need to be rated “Acceptable” on all non-price evaluation factors.25 One of these evaluation factors is Factor 2 – Past Performance.26 In terms of what would be a relevant past performance project, the Solicitation submission criteria is consistent with the Minimum Experience Requirement in the capabilities narrative section of the Solicitation and the earlier Sources Sought notice:

Recent and relevant past performance information for this solicitation is past performance for a total of 24 months of the previous 36 months (from the date established for submission of proposals) in a medical facility similar or larger to BAMC performing services similar in scope and complexity this solicitation requires.27

An offeror could be rated Acceptable on the Past Performance factor based on one of two findings:

• based on the offeror’s record of performance on recent and relevant contracts demonstrated to the government a reasonable expectation that the offeror will successfully perform the required effort; or

• the offeror lacks a record of recent and relevant past performance, the offeror shall be determined to have unknown (or neutral) past performance, and a neutral rating shall be considered “Acceptable.”28

Accordingly, under the source selection method set forth in the Solicitation, an offeror that does not meet the Agency’s Minimum Experience Requirement because it lacks a record of recent and relevant experience necessary to ensure the offeror is capable of performing the work, will nevertheless be automatically rated Acceptable under the Solicitation’s Past Performance evaluation factor, the only source selection evaluation factor pertaining to an offeror’s record of recent/relevant experience.29

25 See Ex. A at 256-260.

26 See Ex. A at 256-260.

27 See Ex. A at 242; see also id. at 234; Sources Sought, supra, Note 9.

28 See Ex. A at 259 (“An offeror without a record of relevant past performance or for whom information on past performance is not available or so sparse that no meaningful past performance rating can be reasonably assigned, the offeror may not be evaluated favorably or unfavorably on past performance.

Therefore, the offeror shall be determined to have unknown (or neutral) past performance. In the context of acceptability/unacceptability, neutral rating shall be considered ‘acceptable.’”). The DoD Source Selection Procedures (“DoD SSP”), dated April 2016 (available at https://www.acq.osd.mil/dpap/policy/policyvault/USA004370-14-DPAP.pdf and made mandatory by DFARS 215.300 and DoD SSP § 1.2.2), and the Army Source Selection Supplement (“AS3”) (see AFARS Appendix AA), mandate that when the Army uses the LPTA method, an offeror that lacks a record of relevant experience must automatically be rated Acceptable on the past performance factor. See DoD Source Selection Procedures, Appendix C at C-3; AS3, Appendix C at C-8.

29 See Ex. A at 259.

ii. The Solicitation’s Technical Evaluation Criteria Lack an Objective Standard by Which to Determine a Technically Acceptable Offeror

Another evaluation factor is Factor 1 – Technical Approach, which also is to be rated on an acceptable/unacceptable basis.30 The evaluation criteria applicable to Factor 1 are as follows:

a. Technical Acceptability Ratings.

1) A decision on the technical acceptability of each offeror’s technical proposal will be made. Each technical proposal will be assigned a rating of:

a) Acceptable: The proposal meets the requirements of the solicitation; or,

b) Unacceptable: The proposal does not meet the requirements of the solicitation.

2) Each offeror’s technical proposal must meet the requirements of the solicitation. The Source Selection Evaluation Board (SSEB) composed of key government personnel will use their technical skills, knowledge, and experience to thoroughly review the adequacy of the technical proposals.

The government will assess whether the offeror’s technical proposal meets the requirements of the solicitation by evaluating the following:

a) Compliance with the requirements of the solicitation, and

b) Understanding of the requirements of the solicitation.

3) The following specific factor will be evaluated in the technical proposal (as outlined in the Addendum to FAR 52.212-2). Any proposed approach, method, or process determined unacceptable may render the entire technical proposal as unacceptable. Upon final determination that a technical proposal is unacceptable, the KO shall promptly notify the firm submitting the proposal that it will not be considered for award and shall indicate in general terms the basis for the determination.

a) Factor 1 – Technical Approach:

Description: The government will evaluate this factor to determine if the offeror’s technical approach, to include the supplements, demonstrates understanding, and compliance, and meets the solicitation requirements.

Measure of Merit: This factor is met when the offeror submits, as part of its technical proposal, specific narrative detailed and/or description of its technical approach (to include supplements) with actual methods, processes, and procedures that demonstrate the offeror’s compliance and understanding of the solicitation requirements.

30 See Ex. A at 258.

As seen from the above evaluation criteria (and discussed further below), the Solicitation lacks any clear and objective standard for whether a proposal will be rated acceptable on Factor 1.

V. GROUNDS FOR PROTEST

A. Use of LPTA Source Selection Method Violates Section 880(c) of the FY2019 NDAA.

The use of the LPTA source selection method violates Section 880(c) of the FY2019 NDAA, which prohibits the use of LPTA to the maximum extent practicable in procurements predominantly for healthcare services. As discussed below, this prohibition applies to the subject procurement, which is for healthcare housekeeping services. Because the use of best value tradeoff for this procurement is possible, the use of LPTA violates the mandate of Section 880(c).

Since there is a reasonable possibility of prejudice to NJS from this unlawful use of LPTA, this protest ground should be sustained.

1. FY2019 NDAA Prohibits Use of LPTA to the Maximum Extent Practicable in Procurements Predominantly for Healthcare Services.

In Section 813 of the FY2017 NDAA (enacted Dec. 23, 2016), Congress declared that “[i]t shall be the policy of the Department of Defense to avoid using lowest price technically acceptable source selection criteria in circumstances that would deny the Department the benefits of cost and technical tradeoffs in the source selection process.” Pub. L. No. 114-328, 130 Stat. 2000, 2270, § 813(a). Congress further directed that the DFARS be amended (no later than April 22, 2017) to include a multi-part (six factor) test that must be met before LPTA selection criteria can be used in a procurement “for solicitations issued on or after the date that is 120 days after the date of the enactment of this Act.” See id., § 813(b).31

In addition to this direction to amend the DFARS, Congress mandated that, “[t]o the maximum extent practicable, the use of lowest price technically acceptable source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of” approximately nine different categories of services/equipment explicitly listed in the law by Congress. See id.,130 Stat. at 2271, § 813(c). Unlike the restrictions on the use of LPTA set forth in Section 813(b), which directed the DoD to issue implementing regulations and which set a future date upon which they would become effective, the mandate prohibiting the use of LPTA in certain type of procurements listed in Section 813(c) did not provide any direction to issue regulations, and thus, Section 813(c) took effect upon enactment of the law.

On August 13, 2018, the President signed into law the FY2019 NDAA. Pub. L. No. 115- 232, 132 Stat 1636. Section 880 of the FY2019 NDAA is effectively an expansion of the DoD specific rules and policies in Section 813 of the FY2017 NDAA to be government-wide. First, Section 880(a) of the FY2019 NDAA restates the policy set-forth in Section 813(a) of the FY2017 NDAA, but this time makes it government-wide. See Pub. L. No. 115-232, 132 Stat 1636, 1909, § 880(a). Second, Section 880(b) of the FY2019 NDAA directs the multi-part test that was to be added to the DFARS to also be added to the FAR. See id., 132 Stat at 1909-10, § 880(b). Third and most relevant to this protest, Section 880(c) of the FY2019 NDAA expands on the list of

31 In Section 822 of the FY2018 NDAA (enacted Dec. 12, 2017), Congress amended the six-factor test set forth in Section 813(b) of the FY2017 NDAA to turn it into an eight-factor test that must be met before LPTA selection criteria can be used in a procurement. Pub. L. No. 115-91, Dec. 12, 2017, 131 Stat 1283, 1465, § 822(a).

categories of services/equipment that Congress had previously explicitly listed for immediate prohibition of the use of LPTA to the maximum extent practicable to add, inter alia, “healthcare services.” See id., 132 Stat at 1910, § 880(c). Specifically, Section 880(c) of the FY2019 NDAA reads as follows:

(c) AVOIDANCE OF USE OF LOW EST PRICE TECHNICALLY ACCEPTABLE SOURCE SELECTION CRITERIA IN CERTAIN PROCUREMENTS.—To the maximum extent practicable, the use of lowest price technically acceptable source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of—

(1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, health care services and records, telecommunications devices and services, or other knowledge-based professional services;

(2) personal protective equipment; or

(3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.

See id., 132 Stat at 1910, § 880(c) (emphasis added).

Unlike Section 880(b), Section 880(c) is not a directive to revise the FAR or DFARS, but instead took effect on the date of enactment of the Act, Aug. 13, 2018. See id., 132 Stat at 1825, § 800(a)(2) (“shall take effect on the date of the enactment of this Act”). Nevertheless, even though Section 880(c) took effect immediately by operation of law, on or before December 4, 2018,32 the Army issued a Class Deviation to make clear that the restrictions in Section 880(c) took effective immediately. See AFARS 5115.101-2 (“See Army Class Deviation 2019-PP01 – Lowest price technically acceptable source selection process dated November 30, 2018 for certain procurements. This deviation implements, on an interim basis … section 880(c) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA 2019). This class deviation remains in effect until the subject NDAA restrictions are incorporated into the FAR or Defense FAR Supplement (DFARS), or this deviation is otherwise rescinded.”).

2. The Subject Procurement is Predominantly for Healthcare Services.

The subject procurement is predominantly for “healthcare services.” This is apparent from the face of the Solicitation, which states, inter alia:

- That the work is to perform “healthcare housekeeping (Type I, II, III, IV, V and VI) and related services in support of Brooke Army Medical Center (BAMC).”33 Type I services “are generally rendered in the [operating room], scrub rooms and prep rooms,” Type

32 FARSite AFARS history records reflect that AFARS 5115.101-2 was added on or before December 4, 2018. See http://farsite.hill.af.mil/archive/AFARS/2018-Dec-04/5115.htm;

http://farsite.hill.af.mil/archive/AFARS/2018-Dec-04/.

33 See FBO.gov, BAMC Solicitation Synopsis, Updated May 8, 2019, https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=4d8c82ff8bc80cac8a71bf4b6caf93be &_cview=0 (emphasis added); see also Ex. A.

II services “are rendered in patient rooms, isolation rooms, recovery rooms, intensive care units, emergency rooms and nursery,” and Type IV services “are rendered in clinics, laboratories, veterinary facilities, radiology, therapy areas and dental facilities.”34

- The Solicitation’s PWS begins by stating that: “This performance work statement (PWS) is for healthcare housekeeping and related services at Brooke Army Medical Center (BAMC), Fort Sam Houston, TX and multiple Medical Treatment Facilities (MTF) in the health service area (HSA) of BAMC.”35

- The stated objective in the Solicitation’s PWS is for the contractor to provide “healthcare housekeeping services that prioritize infection control while optimizing cleaning practices in support of BAMC’s mission of providing quality healthcare in safe, hygienic and aesthetically-pleasing MTFs.”36

- The stated scope in the Solicitation’s PWS is for the contractor to “provide healthcare housekeeping services to BAMC to include all MTFs within the HSA of BAMC.”37

- The Solicitation contains HIPAA provisions, and restriction employing or contracting with any person on the Department of Health and Human Services (HHS) Office of the Inspector General (OIG) List of Excluded Individuals and Entities (LEIE) or the TRICARE Sanctioned Provider List, all of which would only apply to contracts providing health care related services.38 See DHA PGI 224.

- The healthcare housekeeping functions covered by the Solicitation have been declared by the Agency to be “essential” to performing MEDCOM mission essential functions.39

- The Sources Sought notice stated that “[t]he direct and non-direct patient care and healthcare related settings, such as clinics, laboratories, and administrative areas require healthcare services on a MTF area/room-specific scheduled basis.”40

- The Solicitation contains FAR 52.237-7,41 which is to be included “in solicitations and contracts for nonpersonal health care services.” FAR 37.403 (emphasis added).

Accordingly, on its face, it is clear that the Solicitation is predominantly for health care services. The restrictions in Section 880(c) of the FY2019 NDAA apply to this procurement.

34 See Ex. A at 139-140.

35 See Ex. A at 116.

36 See Ex. A at 117 (emphasis added).

37 See Ex. A at 117 (emphasis added).

38 See Ex. at 154-164.

39 See Ex. B.

40 See FBO, Sources Sought, W81K04-17-R-0017, at https://www.fbo.gov/spg/USA/MEDCOM/DADA10/W81K04-17-R-0017/listing.html 41 See Ex. A at 101.

3. The Use of Best Value Tradeoff Source Selection Criteria is Possible in this Procurement.

Although Congress did not define the phrase “to the maximum extent practicable” as used in the FY2019 NDAA, courts hold that Congress intends to give undefined words their ordinary meaning. See Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249, 1253–54 (10th Cir. 1998) (citing United States v. LaBonte, 520 U.S. 751 (1997)). In determining the meaning of “to the maximum extent practicable” as used by Congress in other laws/statutes, courts have concluded that the phrase “imposes a clear duty on the agency to fulfill the statutory command to the extent that it is feasible or possible.” See Biodiversity Legal Found., 146 F.3d at1253–54 (quoting Fund for Animals v. Babbitt, 903 F. Supp. 96, 107 (D.D.C.1995) (construing same language in another subsection of the ESA)); see also SMS Data Prod. Grp., Inc. v. United States, 853 F.2d 1547, 1553–54, 1556 (Fed. Cir. 1988) (where regulation required that agency “shall obtain competition to the maximum extent practicable,” Federal Circuit concluded that “the reprocurement was not conducted to obtain competition to the maximum extent practicable” where “contracting officer could have achieved a significantly higher degree of competition by permitting revised proposals, regardless of whether she decided to establish a new competitive range” and “it would not have been impracticable for the contracting officer” to have done so under the circumstances).

Accordingly, the question is, would it be possible for the Agency to use other than LPTA source selection criteria for the subject procurement? The answer is clearly Yes, it would be possible to use best value tradeoff source selection criteria for the subject procurement.

First, there is nothing on the face of Solicitation that would indicate how or why the use of an other than LPTA source selection method was not possible for the subject procurement.

Second, multiple federal agencies, including the Army itself, have used best value tradeoff procurement methods to procure healthcare housekeeping services. Recent examples of federal agencies using best value tradeoff source selection to procure contracts/orders predominantly for healthcare housekeeping services include:

HEALTHCARE FACILITY AGENCY

Naval Support Activity (NSA) Bethesda, MD (Walter Reed National Military Medical Center)42

Navy

NIH Clinical Center Research Hospital and Laboratories, Bethesda, MD43

NIH

Orland Park Veterans Center (Mental Health Clinic)44

VA

42 See https://www.fbo.gov/spg/DON/NAVFAC/N62477/N4008013R0457/listing.html;

https://www.fbo.gov/utils/view?id=d654092cb10f361767d2d3fb6f384e5b at 9.

43 See https://www.fbo.gov/spg/HHS/NIH/CCOPC/NIH-CC-19-00894/listing.html;

https://www.fbo.gov/utils/view?id=9c7ddf91beed96e047326ee7ddd81ce5;

https://www.fbo.gov/utils/view?id=63f548c6ae57ffac6a232e0ca1a1f892 at 72-75.

44 See https://www.fbo.gov/spg/VA/VAGLHS/VAGLHCS/36C25218Q0983/listing.html.

VA Tulare Community Based Outpatient Clinic45 VA

Intensive Care Unit – USNS Comfort46 Navy

New Mexico VA Health Care System Community Living Center at the New Mexico Veterans Hospital47

VA

David Grant Medical Center, Travis AFB48 Army

The fact that other healthcare housekeeping services contracts have been procured using the best value tradeoff method reflects that it would clearly be possible for the Agency to procure the subject BAMC contract using the best value tradeoff method. Accordingly, the answer to the key question here is Yes, it would it be possible for the Agency to use other than LPTA (i.e., best value tradeoff) source selection criteria for the subject procurement. Therefore, the use of LPTA in the BAMC Solicitation is in violation of Section 880(c) of the FY2019 NDAA.

4. There is a Reasonable Possibility of Prejudice to NJS from the Agency’s Violation of Law.

“[C]ompetitive prejudice is an essential element of every viable protest.” Coulson Aviation (USA), Inc., B-411306 et al., July 8, 2015, 2015 CPD ¶ 214 at 8. GAO “will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency's actions, that is, unless the protester demonstrates that, but for the agency's actions, it would have had a substantial chance of receiving the award.” Aerosage, LLC, B-416381, Aug. 23, 2018, 2018 CPD ¶ 288 at 9. “In the context of a protest challenging the terms of a solicitation, competitive prejudice occurs where the challenged terms place the protester at a competitive disadvantage or otherwise affect the protester's ability to compete.” Aerosage, LLC, B-416381, Aug. 23, 2018, 2018 CPD ¶ 288 at 9; see also Pond Sec. Grp. Italia JV-Costs, B-400149.2, Mar. 19, 2009, 2009 CPD ¶ 61 at 4 (“The question of prejudice in the context of a protest challenging the terms of a solicitation concerns whether the alleged defect affects the protester's ability to compete under the solicitation.”).

There is a reasonable possibility that NJS is prejudiced as a result of the Agency’s improper use of the LPTA source selection method in the Solicitation.

45 See https://www.fbo.gov/spg/VA/VANCHCS/VANCHCS/36C26118Q9461/listing.html;

https://www.vendorportal.ecms.va.gov/FBODocumentServer/DocumentServer.aspx?DocumentId=453205 6&FileName=36C26118Q9461-001.docx at 42.

46 See https://www.fbo.gov/notices/7b799ba4981fca5cbdba24114d2b31ef.

47 See https://www.fbo.gov/spg/VA/TuVAMC/VASAHCS/36C25819R0054/listing.html;

https://www.vendorportal.ecms.va.gov/FBODocumentServer/DocumentServer.aspx?DocumentId=493542 3&FileName=36C25819R0054-001.docx at 49-51.

48 See Ex. D at 1 (“Award of the resultant task order for the attached scope of work will be made to the offeror considered to be the best value to the Government utilizing the Trade-off Process.”).

Accordingly, there is a reasonable possibility that NJS is prejudiced by the improper inclusion of the LPTA source selection method in the Solicitation. As a result, this protest ground should be sustained.

B. Alternatively, the use of LPTA in the Solicitation was Improper Because the Agency Could Not Reasonably Conclude that Best Value is Expected to Result from the LPTA Selection Criteria in the Solicitation.

Assuming, arguendo, that Section 880(c) of the FY2019 NDAA is not effective here, and thus the requirement that LPTA be avoided to the “maximum extent practicable” were not to apply, the FAR itself still limits an agency’s use of LPTA to situations where it reasonably concludes that based on the LPTA award criteria used that “best value is expected to result from selection of the technically acceptable proposal with the lowest evaluated price.” See FAR 15.101–2(a); Trailboss Enterprises, Inc., B-415812.2, et al., May 7, 2018, 2018 CPD ¶ 171 at 4 (an agency may use LPTA award criteria “where it reasonably concludes a minimum level of technical performance satisfies its requirements” (citing PDL Toll, B-402970, Aug. 11, 2010, 2010 CPD ¶ 191 at 2));

Crewzers Fire Crew Transport, Inc., B–402530, B–402530.2, May 17, 2010, 2010 CPD ¶ 117 at 3 (“Agency acquisition officials have broad discretion in the selection of the evaluation criteria that will be used in an acquisition, and we will not object to the absence or presence of a particular evaluation criterion so long as the criteria used reasonably relate to the agency's needs in choosing a contractor or contractors that will best serve the government's interests”). Here, the Agency could not have reasonably concluded that best value would be expected to result from selection of the technically acceptable proposal with the lowest evaluated price using the LPTA selection criteria in the Solicitation. While the Agency concluded that an offeror must have a minimum level of recent/relevant experience to be deemed capable of successfully performing the subject contract, the Solicitation’s LPTA selection criteria will result in an offeror that lacks said minimum experience being automatically rated Acceptable on the one source selection evaluation factor pertaining to experience. Accordingly, the use of LPTA here is inappropriate because best value cannot reasonably be expected to result from the selection of the technically acceptable proposal with the lowest evaluated price using LPTA criteria in the Solicitation.

In the Sources Sought notice, the Agency asked: “Does your firm have corporate experience comparable in a medical facility similar or larger to BAMC healthcare housekeeping services with a total of 24 months of the previous 36 months. A team member or major subcontractor may be used to satisfy this requirement.”50 Then later in the cascading set-aside provision of the Solicitation, the Agency effectively required the same information be provided by small business offerors in their capability narrative.51 This information was requested to determine whether two or more small businesses had the necessary record of experience to be deemed capable of performing the work.52 In other words, the Sources Sought notice and the cascading set-aside provision in the Solicitation clearly reflect the Agency’s conclusion that having recent/relevant healthcare housekeeping services experience, in a medical facility similar or larger

50 See FBO, Sources Sought, W81K04-17-R-0017, at https://www.fbo.gov/spg/USA/MEDCOM/DADA10/W81K04-17-R-0017/listing.html.

51 See Ex. A at 234-235; see also Ex. C at 1-2.

52 See supra Note 23.

to BAMC, was a Minimum Experience Requirement necessary to ensure the offeror is capable of performing the work under the contract.

Despite the above, under the LPTA source selection criteria used in the Solicitation, an offeror that does not meet the Minimum Experience Requirement will still be eligible for award. In fact, an offeror that does not meet the Minimum Experience Requirement will automatically be deemed “Acceptable” under the Solicitation’s Past Performance evaluation factor, the only evaluation factor pertaining to record of relevant experience.53 This result defies all logic. No reasonable person could on one hand conclude that a “Minimum Experience Requirement” was necessary to ensure an offeror was capable of performance (for purposes of a Rule of Two / cascading set-aside analysis), but then automatically give a passing grade in the actual source selection to any offeror that does not meet this very same requirement. Given that that the Agency considers the Minimum Experience Requirement necessary to ensure that the offeror is capable of performance, but that an offeror that fails to meet the Minimum Experience Requirement will automatically be deemed Acceptable under the relevant source selection evaluation factor, the LPTA method used here is reasonably likely to produce an irrational result. Accordingly, the use of LPTA here is inappropriate because best value cannot reasonably be expected to result from the selection of the technically acceptable proposal with the lowest evaluated price using the LPTA criteria in the Solicitation.

For the same reasons as discussed above in Protest Ground A, there is a reasonable possibility that NJS is prejudiced as a result of the Agency’s improper use of the LPTA source selection method in the Solicitation. Accordingly, this protest ground should be sustained.

C. Alternatively, the use of LPTA in the Solicitation was Improper Because it Violates the Requirements in the Army Source Selection Supplement (AFARS Appendix AA) and Mandatory DoD Source Selection Procedures that LPTA Evaluation Criteria Be Crystal Clear and Non-Debatable Criteria with an Objective Standard of Proof.

The Army Source Selection Supplement (“AS3”) sets forth mandatory requirements for “best value, negotiated, competitive source selections with an estimated value greater than $10 million,” see AFARS, Appendix AA Army Source Selection Supplement (“AS3”) at § 1.2, and is therefore applicable to the subject procurement.54 See also AFARS 5115.000. The AS3 mandates that a “procurement is not a candidate for the LPTA process” unless the evaluation criteria can be “objectively defined” through “crystal clear, non-debatable evaluation criteria,” with a “clear” and “objective standard of proof for each criteria.” See AS3 at p. C-3. Similarly, the DoD

53 See Ex. A at 257-260; see also Ex. A at 234-235 (nothing stating that a small business offeror would be eliminated if it did not have the required experience, nor any requirement that a non-small business offeror submit a capabilities narrative to show it had the required experience). Furthermore, even though said offeror would be considered “not capable” of performing the work based on the standard set forth by the Agency in the Sources Sought and the capabilities narrative section/standard in the Solicitation, the Agency could not use that offeror’s failure to meet the minimum experience standard as a basis to eliminate the offeror as nonresponsible. See FAR 9.104-1(c) (“prospective contractor shall not be determined responsible or nonresponsible solely on the basis of a lack of relevant performance history”);

CCM & Maint., Inc., B-292081, May 19, 2003, 2003 CPD ¶ 107 at 4.

54 The incumbent contract for similar services far exceeds $10 million in value. See https://govtribe.com/award/federal-idv-award/indefinite-delivery-contract-w81k0411d0014.

Source Selection Procedures (“DoD SSP”),55 made mandatory by DFARS 215.300 and DoD SSP § 1.2.2, requires that LPTA may only be used in situations “where the Government would not place any value on a product or service exceeding the Government’s threshold technical or performance requirements and these requirements can be objectively defined in measurable terms.” See DoD SSP at C-1. Further, the DoD SSP requires that when an agency uses LPTA the solicitation “must clearly describe the minimum requirements that will be used to determine the acceptability of the proposal. … When standards of performance and quality are subjective, or the Government places value on higher quality or performance, another approach should be used.” See DoD SSP at C-1.

The evaluation criteria for Factor 1 – Technical Approach clearly fail to meet the crystal clear and objective standard test set forth in the AS3 and DoD SSP for the use of LPTA. The evaluation criteria for Factor 1 boil down to the following:

Description: The government will evaluate this factor to determine if the offeror’s technical approach, to include the supplements, demonstrates understanding, and compliance, and meets the solicitation requirements.

Measure of Merit: This factor is met when the offeror submits, as part of its technical proposal, specific narrative detailed and/or description of its technical approach (to include supplements) with actual methods, processes, and procedures that demonstrate the offeror’s compliance and understanding of the solicitation requirements.56

The above evaluation standard allows for a high degree of Agency evaluator subjectivity as to whether or not the narratives in an offeror’s technical proposal “demonstrate the offeror’s compliance and understanding of the solicitation requirements,” with no clear and objective standard of proof provided. The requirements that must be met to be deemed acceptable are not “objectively defined in measurable terms,” nor are they “crystal clear, non-debatable evaluation criteria,” with a “clear” and “objective standard of proof.” See AS3 at p. C-3; DoD SSP at C-1.57 Accordingly, pursuant to both the AS3 and DoD SSP, the use of LPTA is not permitted in this procurement.

For the same reasons as discussed above in Protest Ground A, there is a reasonable possibility that NJS is prejudiced as a result of the Agency’s improper use of the LPTA source selection method in the Solicitation. Accordingly, this protest ground should be sustained.

55 The DoD SSP is available at https://www.acq.osd.mil/dpap/policy/policyvault/USA004370-14- DPAP.pdf.

56 See Ex. at 259.

57 For an example of what the Army means by “crystal clear, non-debatable evaluation criteria,” with a “clear” and “objective standard of proof,” see AS3 at C-12, C-14 & C-15.

D. Alternatively, the Use of LPTA in this Procurement Violates Section 813(b) of the FY2017 NDAA and DoD SSP § C.1.

1. The Restrictions on the Use of LPTA in Section 813(b) of the FY2017 NDAA, as Modified by Section 822(a) of the FY2018 NDAA, By Law, Apply to the Subject Procurement because the Solicitation was Issued After April 22, 2017.

As discussed above, Section 813(b) of the FY2017 NDAA called for the DoD to revise the DFARS to establish a multi-part test that would need to be met before any DoD procurement could be conducted on an LPTA basis. Under the eight-part test in Section 813(b) of the FY2017 NDAA, as modified by Section 822(a) of the FY2018 NDAA, LPTA criteria is only to be used in situations in which:

(1) the Department of Defense is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;

(2) the Department of Defense would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;

(3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal;

(4) the source selection authority has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the Department;

(5) the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file;

(6) the Department of Defense has determined that the lowest price reflects full life-cycle costs, including for operations and support;

(7) the Department of Defense would realize no, or minimal, additional innovation or future technological advantage by using a different methodology; and

(8) with respect to a contract for procurement of goods, the goods procured are predominantly expendable in nature, nontechnical, or have a short life expectancy or short shelf life.

Even though the FY2017 NDAA contemplated that DoD would issue regulations to implement Section 813(b), the Act made clear that those implementing regulations would apply to “solicitations issued on or after the date that is 120 days after the date of the enactment of this Act,” or in other words solicitation issued on or after April 22, 2017. See NDAA FY2017, Pub. L.

No. 114-328, 130 Stat. 2000, 2270-71, § 813(b).

On December 4, 2018, DoD issued a proposed rule to implement Section 813(b), which reads as follows:

In accordance with section 813 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328) as amended by section 822 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91) (see 10 U.S.C. 2305 note), the lowest price technically acceptable source selection process shall only be used when—

(i) Minimum requirements can be described clearly and comprehensively and expressed in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers;

(ii) No, or minimal, value will be realized from a proposal that exceeds the minimum technical or performance requirements;

(iii) The proposed technical approaches will require no, or minimal, subjective judgment by the…