Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

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: AINS, Inc. 

File: B-400760.4; B-400760.5 

Date: January 19, 2010 

Lawrence J. Sklute, Esq., Sklute & Associates, for the protester. 

Peter F. Garvin, III, Esq., and Grant H. Willis, Esq., Jones Day, for Privasoft 

Corporation, an intervenor. 

John R. Caterini, Esq., and Kristen E. Bucher, Esq., Department of Justice, for the 

agency. 

Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of the 

General Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

1. Agency failed to conduct meaningful discussions with protester where it did not 

reasonably advise the protester of agency’s real concern with protester’s quotation--

that evaluators considered its project schedule to be too short. Agency’s request 

during discussions that protester submit a new project schedule as part of its final 

revised quotation did not reasonably convey to the protester that the evaluators 

viewed its proposed schedule as too aggressive, particularly given that a period of 

over a year had elapsed between submission of initial quotations and submission of 

final revised quotations. 

2. Protest challenging agency evaluation of quotations received in response to 

solicitation for establishment of a blanket purchase agreement for an automated 

Freedom of Information Act system and associated services is sustained where 

record fails to demonstrate that the evaluation was reasonable and even-handed. 

DECISION 

AINS, Inc. of Rockville, Maryland protests the establishment of a blanket purchase 

agreement (BPA) with, and issuance of a first call for services to, Privasoft Corp. of 

Ottawa, Canada under request for quotations (RFQ) No. DJJR-08-F-0536, issued by 

the Department of Justice (DOJ) for an automated Freedom of Information Act 

(FOIA) system and associated services. The protester argues that the agency’s 

evaluation of quotations was unreasonable and lacking in even-handedness and that 

the evaluators failed to conduct meaningful discussions with it. 
Page 2 B-400760.4, B-400760.5 

We sustain the protest. 

BACKGROUND 

This is AINS’s third protest of the agency’s selection of Privasoft as the company 

with which to establish the BPA. We dismissed AINS’s first protest, which objected 

to the technical evaluation of its quotation and to Privasoft’s eligibility to enter into a 

BPA, as academic on November 21, 2008, after the agency notified us that it intended 

to take corrective action in response to the protest.1 By decision dated June 12, 

2009, we sustained AINS’s second protest, filed after the agency again selected 

Privasoft as the successful vendor; we found that some aspects of the agency 

evaluation of quotations were not supported by the record and indicated an unequal 

treatment of competing vendors. AINS, Inc., B-400760.2, B-400760.3, June 12, 200

2009 CPD ¶ 142. We recommended that the agency reevaluate quotations and ma

a new source selection determination. The agency responded to our 

recommendation by furnishing each of the vendors with a list of technical issue

questions and inviting each to submit a final revised quotation, due on August 28

2009. After receiving and evaluating the revised quotations, the agency for the

time selected Privasoft to receive the BPA. The agency notified AINS of its decision

on September 30 and furnished it with a written debriefing on October 5. O

October 13, AINS protested to our Office. 

9, 

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s and 

, 

 third 

n 

As noted in our previous decision, the RFQ in question contemplates the 

establishment of a single BPA against the successful vendor’s Federal Supply 

Schedule (FSS) contract for a base and four option years. Work under the BPA is to 

be accomplished through the issuance of “calls” for services, the first of which, for 

implementation of an automated FOIA system of DOJ’s Office of Information Policy,2

was described in the RFQ. Vendors were to furnish a self-assessment of their 

proposed software’s capabilities (i.e., whether the software complied with a series of 

over 250 functional and technical requirements); a description of the vendor’s 

methodology for performing the work described in the first call; a staffing plan for 

the first call; a description of the company’s corporate experience; past performance 

references; and prices for the software products to be furnished and the work to be 

performed under the first call. The solicitation provided for establishment of the 

BPA with the vendor whose quotation represented the best overall value to the 

government, with technical merit--to be determined on the basis of the first five 

 

1

 Specifically, the agency advised us that it intended to reopen negotiations, hold 

discussions with vendors regarding weaknesses and deficiencies, allow vendors to 

submit revised quotations, reevaluate the revised quotations, and make a new source 

selection decision. 

2

 At the time the RFQ was issued, the Office of Information Policy was named the 

Office of Information and Privacy. 
Page 3 B-400760.4, B-400760.5 

factors in the preceding sentence, in descending order of importance--of significantly 

greater importance than price. 

Of relevance to this protest, three of the technical issues raised in the agency’s 

August 13 request to AINS for a final revised quotation were as follows: 

Explain how your product satisfies the OPEN Government Act 

requirement that amends the commencement of the twenty-day 

response time period, as further discussed in OIP’s FOIA Post article 

“OIP Guidance: New Requirement to Route Misdirected FOIA 

Requests,” and as addressed in part in item 4.2 of the Requirements 

Matrix. 

Does your product prevent users from assigning more than one 

disposition/closing code to describe the final disposition of a FOIA 

request? Explain. 

Provide a new project schedule. 

Agency Report, Tab 13. AINS furnished responses to these, as well as the other 

agency questions, in its August 28 final quotation. The protester also reduced its 

proposed level of effort and its proposed price in its final quotation. 

After reviewing the final quotations, the evaluators assigned the following scores: 

FACTOR Possible 

Points 

AINS Score 

After 1st

Reevaluation

AINS 

Final 

Score 

Privasoft 

Score After 1st

Reevaluation 

Privasoft 

Final 

Score 

Product 

Evaluation 

35 21 [deleted] 35 [deleted] 

Technical 

Approach 

25 20 [deleted] 25 [deleted] 

Staffing/ 

Key 

Personnel 

20 16 [deleted] 12 [deleted] 

Corporate 

Experience 

10 10 [deleted] 10 [deleted] 

Past 

Performance 

10 9.6 [deleted] 8.6 [deleted] 

Total Points 100 76.6 67.6 90.6 93.8 
Page 4 B-400760.4, B-400760.5 

Final Technical Evaluation Report, Sept. 29, 2009, Attach. A.3 In their report, the 

evaluators explained that AINS’s score under the product evaluation factor had 

decreased in the final evaluation “because although AINS remedied several prior 

weaknesses, their final revised proposal continues to reflect other weaknesses in the 

product, and it also reveals new weaknesses.”4 Id. at 4. The evaluators noted as 

weaknesses that “AINS still exhibit[ed] a lack of understanding about certain critical 

aspects of FOIA law and the government’s requirements”-- elsewhere in their report, 

the evaluators clarified that the aspect of FOIA law to which they were referring 

pertained to commencement of the 20-day period for an agency response to a FOIA 

request--and that in responding to the agency question asking it to verify that its 

software would prevent the assignment of more that one final disposition code to a 

FOIA request, AINS had furnished examples in which the system had automatically 

inserted a disposition code that was incorrect. 

The evaluators further explained that AINS’s score under the technical approach 

factor had decreased because in its final quotation the protester had proposed a 

“dramatic and unexplained [deleted]% reduction” in its level of effort; according to 

the evaluators, the reduction exacerbated concerns over AINS’s project schedule, 

which they already considered to be overly aggressive. In support of their finding 

that AINS’s project schedule was overly aggressive, the evaluators observed that it 

did not appear to take into account the time required for the product to undergo 

Certification and Approval testing. The evaluators also explained that AINS’s score 

under the staffing/key personnel factor had decreased due to the significant 

reduction in the protester’s level of effort. The evaluators concluded that while 

AINS’s proposed price was substantially lower than Privasoft’s ($373,590 versus 

$489,226), the superiority of Privasoft’s product and technical approach outweighed 

the price differential; accordingly, they again selected Privasoft’s quotation as 

representing the best value to the government. 

 

3

 As noted in our previous decision, the evaluators assigned point scores to the 

quotations by rating them under each of the evaluation factors on a scale of [deleted] 

(with [deleted] corresponding to an adjectival rating of excellent, [deleted] to a 

rating of very good, [deleted] to a rating of fair, [deleted] to a rating of marginal, and 

[deleted] to a rating of poor), and then multiplying the ratings by factor weights. 

AINS was assigned a score of [deleted] and Privasoft a score of [deleted] under the 

product evaluation factor, which had a weight of [deleted], for example; thus, AINS’s 

weighted score under the factor was [deleted] and Privasoft’s score was [deleted]. In 

other words, the scoring of proposals was not nearly as fine-tuned as the availability 

of a maximum possible score implies--the only possible scores that a quotation could 

have received under the product evaluation factor were [deleted]. 

4

 The reference to a decrease in score under the product evaluation factor is 

erroneous; AINS’s score under the factor did not decrease, but instead remained 

constant. 
Page 5 B-400760.4, B-400760.5 

ANALYSIS 

Lack of Meaningful Discussions 

The protester argues that the evaluators failed to conduct meaningful discussions 

with it by failing to advise it that they considered its schedule to be overly 

aggressive. We agree. 

When an agency engages in discussions with a vendor, the discussions must be 

“meaningful,” that is, sufficiently detailed to lead the vendor into the areas of its 

quotation requiring amplification or revision. Honeywell Tech. Solutions, Inc., 

B-400771, B-400771.2, Jan. 27, 2009, 2009 CPD ¶ 49 at 10. 

Here, we do not think that the request for a new schedule reasonably conveyed to 

the protester that the evaluators viewed its proposed schedule as too aggressive; 

given that a period of over a year had elapsed between submission of the vendors’ 

initial quotations and submission of their final quotations, we think that vendors 

could reasonably have understood the request to be nothing more than a request for 

updated information. We note in this connection that the evaluators furnished 

precisely the same request for a new schedule to Privasoft, and in its case, the 

request was not intended to convey a concern over the duration of the schedule. We 

think that by failing to advise the protester in discussions that they considered its 

project schedule to be too short, the evaluators failed to conduct meaningful 

discussions with it. Moreover, we think under these circumstances that the advice 

given at the debriefing did not obviate the need to raise this concern when the 

agency reopened discussions. 

Evaluation Challenges 

AINS argues that the agency’s evaluation of its quotation was unreasonable and that 

the agency was not even-handed in its assessment of the two quotations. 

Where an agency conducts a formal competition for the establishment of a BPA, we 

will review the agency’s actions to ensure that the evaluation was reasonable and 

consistent with the solicitation and applicable procurement statutes and regulations. 

AINS, Inc., supra, at 5-6. One of the factors that we will consider in assessing the 

reasonableness of the agency’s findings is whether the agency was even-handed in its 

assessments--that is, whether it gave offerors similar credit for similar strengths in 

their proposals, and, along the same lines, whether it was consistent in its attribution 

of weaknesses to the proposals. See Tidewater Homes Realty, Inc., B-274689, Dec. 

26, 1996, 96-2 CPD ¶ 241 at 3-6. Based on our review of the record here, we agree 

with the protester that several aspects of the agency’s evaluation were unreasonable 

and lacking in even-handedness. 
Page 6 B-400760.4, B-400760.5 

Technical approach and staffing

The protester argues that the fact that it reduced its level of effort (LOE) in its final 

quotation was not, in and of itself, a reasonable basis for the evaluators to have 

found its final proposed LOE inadequate; the protester maintains that the evaluators 

should have, but did not, consider whether its staffing level, as reduced, was 

appropriate. The protester points out that, for example, while the evaluators 

criticize it for having reduced the hours for its [deleted] in the [deleted] phase from 

[deleted] hours to [deleted] hours without a reasonable explanation, its total 

proposed LOE for the [deleted] phase was significantly higher than Privasoft’s even 

after the reduction (i.e., [deleted] versus [deleted] hours). (We also note in the 

foregoing connection that [deleted] hours was more than Privasoft had proposed for 

its comparable position during the [deleted] phase.) We agree with the protester that 

the fact that the protester reduced its LOE in its final quotation is not by itself 

evidence that the LOE was inadequate, and since there is no evidence in the record 

that the evaluators looked at anything else in reaching their conclusion, we find the 

evaluation panel’s conclusion that AINS had not proposed an adequate LOE in its 

final quotation to be unsupported.5

Product Evaluation

The protester takes issue with the weaknesses attributed to its proposal under the 

product evaluation factor. AINS argues that the evaluators treated the two vendors 

unequally in finding that its response to the discussion question asking it to clarify 

how its product satisfied the OPEN Government Act requirement amending the 

commencement of the 20-day period for agency response to a FOIA request revealed 

a lack of understanding of the requirement, while finding that Privasoft’s response to 

the same question demonstrated an understanding of the requirement. In addition, 

AINS argues that the evaluators engaged in unequal treatment by downgrading its 

software for failing to automatically insert a correct disposition code, while failing to 

downgrade Privasoft’s software, which does not have the capability to automatically 

insert any final disposition codes. 

The OPEN Government Act of 2007 added the following language to 5 U.S.C. 

§ 552(a)(6)(A), the FOIA provision that sets the time period for agency response to a 

FOIA request as 20 days after receipt: 

 

5

 We recognize that the agency claims that the record is “replete with support that 

the TEP did, in fact, consider the level of effort and labor hour mix.” Supplemental 

Agency Report, Dec. 16, 2009, at 25. We reviewed the record and found only 

references to the previously mentioned reductions in AINS’s LOE and conclusory 

statements regarding the adequacy of Privasoft’s proposed LOE. 
Page 7 B-400760.4, B-400760.5 

The 20-day period . . . shall commence on the date on which the 

request is first received by the appropriate component of the 

agency, but in any event not later than ten days after the request 

is first received by any component of the agency that is 

designated in the agency’s regulations under this section to 

receive requests under this section. . . . 

Pub. L. No. 110-175, § 6(a)(1). Prior to this amendment, a request that was not 

directed to the proper FOIA office within the agency was not considered “received” 

and the receiving FOIA office could merely advise the requester that he/she needed 

to make a request directly to the proper FOIA office; now, a FOIA office that receives 

a misdirected request may no longer merely advise the requester as above, but must 

instead forward the misdirected FOIA request to the proper FOIA office within the 

agency. OIP Guidance: New Requirement to Route Misdirected FOIA Requests 

(posted 11/18/2008). 

AINS responded to the discussion question asking it to explain how its product 

satisfied the new statutory language concerning commencement of the 20-day 

response period in relevant part as follows: 

Our understanding of the new FOIA law for the 20-day clock is that 

requests are tracked from the received date. The number of working 

days between the received date and the date a request is logged-in and 

the 20-day clock begins should be a part of the record. FOIAXpressTM 

[the protester’s software] automatically does the following: 

• Configures the “Set Target Date From” value to “Received Date.” 

* * * * * 

• Enables “Transfer Case”, which is available as a new “action” to 

transfer the request from one action authority to another action 

authority allowing for the 10 day transfer period. 

• Requests can be transferred as many times as necessary. 

However, if the action authority fails to route the misdirected 

request within ten working days, and the request is a proper 

FOIA request, the twenty-day response time period commences 

on the tenth day nonetheless. 

AINS Final Response, Aug. 28, 2009, at 11. 

Privasoft responded to the same question as follows: 
Page 8 B-400760.4, B-400760.5 

AccessPro [Privasoft’s software] provides all of the functionality 

required to correctly route misdirected FOIA requests. AccessPro 

Case Management correctly (and transparently to the user) manages 

the 10 day “routing” period for a request. It ensures that the clock 

starts either on the tenth day from the reception by any component, or 

on the date perfected, whichever is sooner. . . . 6

 

Privasoft Final Revised Quotation, Aug. 28, 2009, at 4-7. 

The evaluators analyzed AINS’s response to the above question as follows: 

The TEP is very troubled by AINS’ response to this question, as it 

reveals a significant lack of understanding of this OPEN Government 

Act requirement. . . . 

The proposal on page 11 states, “Our understanding of the new FOIA 

law for the 20-day clock is that requests are tracked from the received 

date.” This reflects an inaccurate understanding of what is new in the 

Open Government Act (OGA) relating to the 20-day clock. The 20-day 

clock is the time period within which agencies must respond to FOIA 

requests. AINS’s statement suggests that the OGA designates “received 

date” as a new commencement event for the 20-day clock. This is 

incorrect. Re quests have always been tracked by the received date. 

Rather, the new rule states that the twenty-day clock begins the day the 

request is first received by the appropriate office of the agency (that is, 

the office where the agency determines the requested records are 

likely to be located), but in any event not later than ten days after the 

request is first received by any office within the agency that is 

designated by the agency’s regulations to receive FOIA requests. In 

other words, the OGA creates a ten-day limit of the buffer period for 

misdirected FOIAs. It does not create “received date” as the new point 

from which requests are tracked. AINS’ statement, however, suggests 

that the change introduced by the OGA is that requests are now 

tracked from the received date. 

 

6

 Privasoft then explained the information that would be entered into its software 

system by the office that initially receives a request and by the office to which an 

initially misdirected request is forwarded in three scenarios: (1) where a request 

must be re-routed between two components on the same AccessPro database; (2) 

where a request must be reassigned between two components using AccessPro on 

separate database instances; and (3) where a request is received by a component 

using AccessPro and must be reassigned to a component using manual methods or 

another software system. 
Page 9 B-400760.4, B-400760.5 

AINS states on page 11 of its proposal that “The number of working 

days between the received date and the date a request is logged-in and 

the 20-day clock begins should be a part of the record.” The TEP does 

not understand what AINS is attempting to convey in this statement, or 

how it relates to any changes introduced by the OGA. The statement 

appears to relate to the OGA’s new 10-day buffer limit for misdirected 

FOIA requests referred to above. AINS, however, does not explain 

what they mean by “logged-in,” and the term is not self-explanatory. As 

important, nowhere in the OGA or in any of OIP’s guidance on the OGA 

is the term “logged in” used. Indeed, legally, the FOIA’s requirements 

are not dependent on when a request is “logged in,” to the extent this 

term is used to mean recording of receipt. Rather, the dispositive 

event in the FOIA law in general is “receipt.” Even if AINS is using the 

term “logged-in” as shorthand for “receipt,” the answer still reflects a 

lack of precision and lack of knowledge of the law, and is problematic 

when precise legal requirements are at issue. In short, this statement, 

in addition to being confusing, reflects misunderstanding regarding the 

FOIA and therefore is of serious concern to the panel. 

 * * * * * 

Bullet point #3 (. . .), which refers to the “10 day transfer period,” 

reveals AINS’ lack of understanding of the law because the law does 

not affirmatively provide agencies with a “10-day transfer period.” 

Rather it provides that if a request is misdirected to the wrong office, 

then that office must route it to the correct office, and that the 20-day 

time period for responding to the request will begin as soon as the 

request arrives at the correct office, but no later than 10 days after the 

original office received it. This is not the same thing as being given a 

blanket “10-day transfer period.” 

Final Technical Evaluation Report at 12.7

In contrast, the evaluators summarized Privasoft’s response as follows: 

Privasoft’s response reflects an extensive understanding of the OPEN 

Government Act, OIP’s related written guidance, and requirement 

 

7

 In the section of the agency analysis that we do not quote above, the evaluators 

explained that they also had concerns regarding the protester’s understanding of 

language added to FOIA by the OGA pertaining to tolling of the 20-day period. Based 

on our review of the language in AINS’s final quotation, we think that AINS’s choice 

of wording could have been better, but that it did not reflect a lack of understanding 

of the tolling requirements. 
Page 10 B-400760.4, B-400760.5 

number 4.2. This understanding is demonstrated by Privasoft’s 

statement that its product meets the routing requirement related to 

misdirected FOIA requests with, “. . . software [that] contains the 

correct logic to process the request clock,” . . . by “ensur[ing] that the 

clock starts either on the tenth day from reception by, any component, 

or on the date perfected, whichever is sooner.” . . . It is clear from 

Privasoft’s response that it understands the OPEN Government’s 

amendment to the commencement of the twenty-day response time 

period, which provides that the twenty-day clock begins the day the 

request is first received by the appropriate office of the agency, but in 

any event not later than ten days after the request is first received by 

any office within the agency that is designated by the agency’s 

regulations to receive FOIA requests. . . . 

Id. at 19. 

First, while the evaluators criticize the protester for implying that the tracking of 

requests from initial date of receipt is a new requirement, it is clear from OIP 

guidance that the tracking of requests originally sent to the wrong FOIA office from 

the initial date of receipt at the wrong office is in fact a new requirement. In this 

connection (and as previously noted), prior to the effective date of the OGA, a 

request that was not directed to the proper FOIA office within the agency was not 

considered “received,” and “the receiving FOIA office could merely advise the 

requester that he needed to make a request directly to the proper FOIA office.” OIP 

Guidance: New Requirement to Route Misdirected FOIA Requests. Along the same 

lines, while the evaluators criticize the protester for stating that the number of days 

between receipt of a request and its logging in “should be part of the record,” 

questioning what the protester meant and how it related to the changes introduced 

by the OGA, OIP guidance concerning the new routing requirement in fact includes a 

section entitled “Documenting the Date of Receipt(s),” which explicitly instructs 

agency FOIA offices as follows: 

. . . In order to ensure that all offices involved in the handling of FOIA 

requests can accurately calculate the response times available to them, 

all FOIA offices should note, directly on the request letter, the date of 

receipt in their office. For any request that was misdirected and so 

needs to be routed, the receiving FOIA office should note its date of 

receipt, and then the proper FOIA office will, in turn, note a second or 

subsequent date memorializing when the request was received by the 

proper FOIA office. These actions will enable the proper FOIA office 

to assess when the twenty-day time period for responding to a FOIA 

request begins. . . . 

Id. Clearly, one of the requirements associated with the new language pertaining to 

the routing of misdirected requests is that the agency maintain a record of the date 
Page 11 B-400760.4, B-400760.5 

that the request is originally received and the date that it is received by the proper 

FOIA office; thus, we fail to see a reasonable basis for the evaluators’ professed 

concern over how the excerpted statement in the protester’s quotation relates to any 

of the changes introduced by the OGA. 

Further, we agree with the protester that to the extent that (1) its use of the term 

“logged in” is imprecise and (2) its reference to a “10 day transfer period” incorrectly 

implies that the 10-day period applies even when the request is routed to the correct 

office in less than 10 days, Privasoft’s use of the term “perfected” and its reference to 

a “10 day routing period” are equally imprecise and capable of being construed as 

reflecting a misunderstanding of the new requirement. The agency maintains that 

because OIP guidance includes a definition of the term “perfected request,” it was 

clear what Privasoft meant when it used the term “perfected,” but that it was unclear 

what the protester meant by the term “logged in” since that term is not defined in 

OIP guidance. We are not persuaded by the agency’s argument given that OIP 

guidance does not define a “Perfected Request” as one that has arrived in the proper 

FOIA office, which is apparently what Privasoft intends by the term; rather, it defines 

a “perfected request” as “a request for records which reasonably describes such 

records and is made in accordance with published rules stating the time, place, fees 

(if any) and procedures to be followed.” 2008 Guidelines for Agency Preparation of 

Annual FOIA Reports (posted 5/22/2008; supplemented 10/16/2008) at 7. Indeed, 

given that OIP guidance instructs that “if the request is not reasonably described, . . ., 

or if the requester has failed to provide a required verification of identity, or fails to 

satisfy any other procedural requirement set out in the agency’s regulations, the 

proper FOIA office should communicate with the requester directly to clear up those 

procedural deficiencies with the request,” and “[u]ntil the request meets the 

remaining requirements for being a proper request, the twenty-day response period 

does not begin to run,” OIP Guidance: New Requirement to Route Misdirected FOIA 

Requests, Privasoft’s statement that “the clock starts either on the tenth day from 

reception by any component, or on the date perfected, whichever is sooner,” is not 

entirely correct. That is, if a request were forwarded to the proper FOIA office 8 

days after its receipt at another FOIA office, and it then took 10 days for the agency 

to obtain additional information from the requester required to clear up procedural 

deficiencies with the request, application of the foregoing OIP guidance would 

dictate that the 20-day period not begin to run until the 18th day--and not on the 10th

day, as Privasoft’s response indicates. 

We also note that receipt of a request by “any component” is not sufficient to start 

the routing clock running, as the above statement by Privasoft implies; rather, OIP 

guidance clarifies that the “ten-day routing requirement only applies to requests that 

are received by a component of the agency that is designated in the agency’s FOIA 

regulations to receive requests.” Id. Along the same lines, we are not persuaded by 

the agency’s argument that Privasoft’s reference to a “10 day routing period” may 

reasonably be understood as a reference to a routing period of up to 10 days, 

whereas AINS’s reference to a “10 day transfer period” implies a blanket period of 10 
Page 12 B-400760.4, B-400760.5 

days; both appear to be shorthand references by the vendors to the period of up to 

10 days for forwarding of a FOIA request to the proper office. 

In sum, given the discussion above, we think that the evaluators treated the two 

vendors unequally in finding that AINS’s response revealed a significant lack of 

understanding of the requirement, while Privasoft’s response reflected an extensive 

understanding. 

We turn then to the protester’s argument that it was unfair for the evaluators to cite 

as a weakness under the product evaluation factor the failure of its software to 

automatically insert a correct disposition code, while failing to attribute such a 

weakness to Privasoft’s software, which does not have the capability to 

automatically insert any final disposition codes. We agree. In response to the 

protester’s argument that while its software might occasionally default to an 

incorrect disposition code, this was not a significant problem because the user could 

override the default selection, the agency maintained that requiring the user to take 

the time to select the correct disposition was inconsistent with its purpose in 

procuring an automated system. Agency Report, Nov. 13, 2009, at 29. As the 

protester points out, however, Privasoft’s software, which does not automatically 

insert any codes (but instead requires the user to select a disposition from a dropdown menu) is also inconsistent with the agency’s goal of acquiring an automated 

system. Again, we think that the evaluators’ treatment of the two quotations was 

disparate. 

CONCLUSION AND RECOMMENDATION 

In sum, we conclude that the agency failed to conduct meaningful discussions with 

AINS regarding its project schedule. We also conclude that a number of aspects of 

the agency’s evaluation are not supported by the record and indicate an unequal 

treatment of competing vendors. Accordingly, we sustain the protest. We 

recommend that the agency reopen discussions as appropriate, request and 

reevaluate revised quotations, and make a new source selection decision. If AINS is 

selected as the vendor whose quotation represents the best value to the government, 

we recommend that the BPA established with Privasoft be terminated and that a 

BPA be established with AINS. We also recommend that the protester be 

reimbursed the reasonable costs of filing and pursuing the protest, including 

reasonable attorneys’ fees. 4 C.F.R. § 21.8(d)(1) (2009). The protester’s certified 

claim for costs, detailing the time spent and the costs incurred, must be submitted to 

the agency within 60 days after receipt of this decision. 

The protest is sustained. 

Lynn H. Gibson 

Acting General Counsel