BNUMBER: B-260945.4
DATE: September 29, 1995
TITLE: Main Building Maintenance, Inc.
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REDACTED DECISION
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Main Building Maintenance, Inc.
File: B-260945.4
Date: September 29, 1995
Garreth E. Shaw, for the protester.
Darcy V. Hennessy, Esq., Moore, Bucher & Morrison, DGR Associates,
Inc, an interested party.
Kathryn M. Burke, Esq., Department of the Air Force, for the agency.
John Van Schaik, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest is sustained where source selection authority based the
selection of the awardee over the protester on his erroneous belief
that the awardee's proposal included certain "value added strengths"
not included in the protester's proposal.
DECISION
Main Building Maintenance, Inc. protests the award of a contract to
DGR Associates, Inc., under request for proposals (RFP) No.
F08637-94-R-7011, issued by the Department of the Air Force for
military family housing maintenance services, including service calls,
change of occupancy maintenance, recurring maintenance, and appliance
maintenance. Main argues that the agency improperly evaluated
proposals and failed to conduct meaningful discussions and that the
source selection decision was based on an erroneous understanding of
the differences between the proposals.
We sustain the protest.
The RFP contemplated the award of an indefinite delivery, indefinite
quantity, fixed-price contract to provide services for a base year and
3 option years. The RFP stated that award would be made to the
offeror whose proposal was most advantageous to the government based
on an integrated assessment of technical and price criteria, with
technical criteria more important than price. The RFP listed the
following technical evaluation areas in descending order of
importance: area A, comprehension of requirements; area B, management
organization and staffing; area C, contract management; and area D,
experience. Each of the evaluation areas included evaluation items.
After an initial evaluation, 11 proposals were included in the
competitive range. Discussions were held with the competitive range
offerors and best and final offers (BAFO) were submitted and
evaluated. Under each of the evaluation areas, the proposals were
assigned color-coded ratings, performance risk ratings, and were
ranked based on the color and risk ratings.[1] The final evaluation
ratings and rankings of Main and DGR were as follows:
Offeror Main DGR
Comprehension of requirementsblue, low risk
ranked fifth +blue,[2] low risk
ranked first
Management organization and staffing+blue, low risk
ranked first blue, low risk
ranked second
Contract management +blue, low risk
ranked second green, low risk
ranked seventh
Experience green, low risk
ranked seventh +blue, low risk
ranked first
Main's BAFO included a price of [deleted] and DGR's BAFO included a
price of [deleted]. In a written source selection decision, the
source selection authority (SSA) compared each of the competitive
range proposals to DGR's proposal. Based on those comparisons, the
SSA decided that DGR's proposal represented the best overall value.
Among numerous other contentions, Main argues that the written source
selection decision indicates that the SSA awarded the contract to DGR
as a result of a mistaken understanding of the differences between the
DGR and the Main proposals. In particular, the protester maintains
that a number of significant strengths which the SSA attributed
exclusively to DGR's proposal also were present in Main's proposal.
As explained, the SSA compared each of the competitive range proposals
to DGR's proposal. In one of those comparisons, to a proposal other
than that of Main, the SSA stated:
"While offeror `F' was very close to DGR in overall technical
ratings, finishing 2nd and 3rd respectively in the two most
important technical areas, DGR was technically superior because,
along with their other strengths, theirs was the only offer which
(i) provided a computerized system [deleted], (ii) provided
[deleted] phone line which adds value in terms of customer
access, (iii) provided completion of routine service calls in
[deleted] days versus thirty, thereby adding value by reducing
the probability of costly expenditures for major maintenance,
(iv) provided for flexibility in scheduling which adds value in
terms of responsiveness to the customer and availability to meet
changing requirements, (v) provided [deleted], thereby reducing
the probability of expensive delays inherent in obtaining
approvals for unscheduled requirements, and (vi) provided for
[deleted] contact between the Contract Manager and maintenance
personnel through [deleted] thereby adding value in terms of
responsiveness and flexibility."
The selection statement further states that DGR's proposal was
"clearly superior technically" and "the decision then is whether or
not that superiority adds sufficient value to warrant award over the
five lower priced offerors," including Main. In comparing DGR's
proposal to Main's proposal, the selection statement states: "In the
most important [evaluation] area . . . [Main] was clearly inferior to
DGR in that none of the value added strengths which established DGR's
technical superiority to offeror `F' were present in [Main's]
proposal."
Thus, the source selection authority determined that DGR's proposal
was technically superior to all others submitted and that it was
superior to Main's proposal under the most important evaluation area,
Comprehension of requirements, because Main's proposal included none
of the six "value added strengths" listed above.
According to Main, the SSA was mistaken concerning at least four of
the six strengths on which he relied to decide that DGR's proposal was
superior to Main's proposal. Specifically, Main argues that the SSA
mistakenly stated that DGR's proposal was the only one to provide:
1. A computerized system [deleted],
2. [Deleted],
3. [Deleted] and
4. [Deleted] contact between the contract manager and maintenance
personnel through [deleted].
Main contends that it offered each of these strengths and therefore,
the selection decision was flawed and should be overturned.
In reviewing an agency's evaluation of proposals and source selection
decision, we will confine our analysis to a determination of whether
the agency acted reasonably and consistent with the stated
solicitation evaluation criteria. SDA Inc., B-248528.2, Apr. 14,
1993, 93-1 CPD 320. Here, although the SSA explicitly based the
selection decision between DGR and Main on his belief that only DGR's
proposal included the six strengths listed above, Main's proposal and
the evaluation record demonstrate that the SSA was misinformed on four
of those six strengths.
First, although the SSA believed that only DGR proposed a computer
system [deleted], in its report in response to the protest, the agency
concedes that, in fact, Main did offer such a computer system. The
agency argues, however, that DGR's computer system was superior to
Main's proposed computer system because it is compatible with
[deleted].
While Main does not argue that its proposed computer system is
compatible with [deleted], that compatibility was not the basis for
the SSA's comparison and was not a basis for DGR's superiority as
described by the SSA in the selection statement. Rather, as
explained, the SSA relied, erroneously as it turns out, on the belief
that DGR, and not Main, offered a computer system [deleted].
Second, the agency essentially concedes that Main also proposed
flexibility in scheduling. In response to an allegation by the
protester that DGR should not have been given credit in the evaluation
for flexibility in scheduling, the agency notes that the evaluators
gave Main's proposal credit for "recognizing peak times" and argues
that both "flexibility in scheduling" and "recognizing peak times"
simply recognize each firm's ability to have personnel available to
meet contractual needs, in particular when demand is the greatest.
Under the circumstances, we see no basis for the SSA's belief that
only DGR's proposal offered flexibility in scheduling.
Third, with regard to the authority of both the contract manager and
assistant manager to act on the company's behalf, Main's proposal
states:
"The Contract Manager will be vested with full authority to commit
all resources at the Company's disposal in all matters within the
scope of the contract. In the Manager's absence, the assigned
Alternate Contract Manager will also be vested with the same level of
authority. There will be no limitations on the Contract Manager and
he will be able to make `on the spot' decisions, including the
amendment and/or modification of the contract."
Main's proposal does not include an assistant contract manager;
instead the proposal refers to this position as an alternate contract
manager.[3]
The evaluation record shows that agency technical evaluators
recognized that Main had proposed the proper level of authority in its
contract manager, although the evaluators did not explicitly recognize
that Main's proposal vested the proper authority in the alternate
manager. Under the management organization and staffing evaluation
area for Main, an evaluator stated:
"Proposal demonstrates a very strong knowledge of the importance of
the role and authority for a corporate contract manager. The offeror
indicates that `there will be no limitations on the Contract Manager
and he will be able to make "on the spot" decisions, including the
amendment and/or modification of the contract.'"
Whether in reliance on this evaluation record or otherwise, the SSA's
belief that Main's proposal did not provide for the contract manager
and the assistant manager to have authority to act on the company's
behalf is simply inconsistent with Main's proposal.[4]
Fourth, the record demonstrates that Main did provide for constant
contact between the contract manager and maintenance personnel through
use of beepers/pagers and radios. Main's proposal, when it described
the vehicles it would use on the contract, stated "[e]ach truck will
be radio equipped for ease of communications." In addition,
concerning after-hours coverage, Main's proposal stated "on-call
craftsman (representative) shall be available by telephone and pager
throughout the period for which he is responsible."
Although Main's proposal included the use of radio-equipped vehicles
and pagers, this was not reflected in the evaluation record. None of
the evaluation documents stated that Main had proposed the use of
pagers or radio controlled vehicles. Concerning DGR's proposal,
however, a "Strengths Analysis Chart," which was part of the
evaluation record, reflected the evaluators' awareness that DGR had
proposed [deleted].
In response to the protest, the agency argues that DGR proposed to
better equip its personnel so it was reasonable to assign greater
credit to DGR. The agency explains that while Main's proposal
indicated that its on-call craftsmen would be available by telephone
and pagers, DGR proposed to have a [deleted]. In addition, the agency
states that DGR proposed that [deleted], which would be a distinct
advantage over Main's proposal of radios in vehicles since the
majority of the time is spent in housing units and not in the
vehicles.
The distinctions referenced by the agency did not appear in the
evaluation record and therefore do not appear to have been relied upon
by the SSA in the selection decision. Simply stated, it appears to us
that the SSA, relying on the evaluation record, which reflected the
use of [deleted], but not Main, concluded that DGR's use of those
devices was a "value added strength" in DGR's proposal; the SSA does
not appear to have concluded that the "value added strength" was DGR's
better approach in this area. Because the SSA was not presented with
complete, accurate information in this areas, the SSA did not have the
opportunity to consider the benefits, if any, of Main's approach
before deciding that DGR's proposal had a "value added strength" with
respect to this item.
While source selection officials are entitled to independently judge
the merits of competing proposals, these judgments must have a
rational basis, see TRW, Inc., B-254045.2, Jan. 10, 1994, 94-1 CPD
18, and agency officials may not disparately evaluate offerors'
proposals with respect to the same requirements. Sci-Tec Gauging,
Inc.; Sarasota Measurements & Controls, Inc., B-252406; B-252406.2,
June 25, 1993, 93-1 CPD 494.
Here, the written record demonstrates that the SSA was mistaken
concerning four of the six "value added strengths" which he attributed
exclusively to DGR's proposal. The SSA considered those four
strengths to fall within the most important technical evaluation area,
comprehension of requirements. Had Main's proposal also been given
credit for those four strengths, it is likely that Main's proposal
would have been perceived as stronger by the SSA and, on this record,
we cannot conclude that it would not have been selected as the best
value. Consequently, we sustain the protest on this basis.
In deciding whether the appropriate remedy should be limited to a new
source selection decision, rather than reopening of discussions and
reevaluation, we review Main's other challenges to the evaluation of
the proposals.
Main argues that DGR should not have been given credit in the
evaluation and source selection for proposing to respond to service
calls in [deleted] days, since the RFP required responses only in 30
days. The RFP encouraged offerors to include in their proposals all
available information relating to the evaluation criteria "as well as
any other information which the offeror feels would bear on his
ability to perform the services." The RFP also stated that award
would be made to the offeror whose proposal was most advantageous to
the government and that each offer should be submitted "on the most
favorable terms, from both technical and cost standpoints." Where, as
here, detailed technical proposals are sought and technical evaluation
criteria are used to enable the agency to make comparative judgments
about the relative merits of competing proposals, offerors are on
notice that qualitative distinctions among the technical proposals
will be made under the various evaluation factors. See Cybernated
Automation Corp., B-242511.3, Sept. 26, 1991, 91-2 CPD 293.
Consequently, since offerors were on notice from the RFP of a
comparative evaluation of the relative merits of competing proposals,
any additional credit which DGR received for offering to exceed a
minimum requirement was entirely proper. Id.[5]
Main also argues that by giving DGR credit for needing no phase-in
period, the evaluators deviated from the evaluation criteria in the
RFP. Main argues that under the evaluation plan for the RFP, under
the evaluation item "Start-up schedule," credit was to be given based
on how well proposals demonstrated the capability to provide required
maintenance on the start-up date, including consideration of a phasing
chart depicting acquisition of equipment, recruitment, training, and
acquisition of materials. According to Main, notwithstanding this
standard, the agency assigned credit to DGR simply because, as the
incumbent, DGR would not need a phase-in period. In addition, Main
notes that DGR was assigned credit under the comprehension of
requirements evaluation area for not needing a phase-in period and
argues that this was improper since that evaluation area concerned
only offerors' understanding of the requirements.
Contrary to the protester's allegations, we conclude that the credit
assigned to DGR's proposal for not needing a phase-in period was
reasonable and consistent with the RFP. The evaluation item "Start-up
schedule" was included under the comprehension of requirements
evaluation area and we think that the evaluation of a phase-in
schedule was reasonably contemplated under that evaluation item.
Although DGR was given credit for not needing a phase-in period since
it was the incumbent, we do not see how this was inconsistent with the
agency's concern under that factor for comprehension of the
requirements of the solicitation.
Main also notes that the evaluators stated that under an award to the
incumbent, "[t]here are no foreseeable obstacles to continued service
thus saving time and money while ensuring customer satisfaction."
According to Main, this consideration of potential cost savings of
awarding to the incumbent was inconsistent with the RFP evaluation
scheme which did not indicate that the cost savings related to
awarding to the incumbent would be considered. Since the RFP stated
that the evaluation would include consideration of the "Start-up
schedule" evaluation item, we think that the incidental mention of the
advantages to the government of avoiding a transition phase, which
would include a potential for a disruptive expenditure of time and
money, was reasonable and consistent with the government's
well-established practice of recognizing, in appropriate
circumstances, the value of continued performance by an incumbent.
See, e.g., Benchmark Sec., Inc., B-247655.2, Feb. 4, 1993, 93-1 CPD
133.
Main also raises a series of allegations in which it essentially
disagrees with the ratings assigned to its own proposal or to DGR's
proposal. As explained, we confine our review of an agency's
evaluation of proposals to a determination of whether the agency acted
reasonably and consistent with the stated solicitation evaluation
criteria. SDA Inc., supra. Mere disagreement with the agency's
evaluation does not render the evaluation unreasonable. CORVAC, Inc.,
B-244766, Nov. 13, 1991, 91-2 CPD 454. Here, we conclude that the
ratings challenged by Main were reasonable.
Main argues that the rating of blue, low risk assigned to DGR's
initial proposal under the comprehension of requirements evaluation
area should have been reduced based on DGR's BAFO which, according to
the protester, reduced DGR's ability to provide timely and quality
change of occupancy maintenance. DGR's initial proposal stated that
each of [deleted] change of occupancy maintenance work crews would
consist of [deleted]. In response to a discussion question, DGR
changed its proposal to reflect [deleted], rather than [deleted],
basic change of occupancy maintenance work crews. In addition, DGR
stated that those crews would not consist of all the members listed
above but would include [deleted]. According to Main, this reduction
in the number of crews and in the staff assigned to those crews would
result in a significant lessening of DGR's ability to provide timely
and quality maintenance and should have resulted in a reduction in
DGR's rating under the comprehension of requirements evaluation area
from blue, low risk to green, moderate risk.
The evaluators, however, did not view the change negatively, but as an
appropriate response to a matter raised in discussions. The agency
noted during discussions with DGR that the firm's proposal stated that
it would have [deleted] work crews "but the workforce is not
distributed properly on the chart." Rather than viewing DGR's
response as reflecting poorly on DGR's comprehension of the
requirements, the evaluators considered the reduction in the number
and size of the firm's work crews to be a positive feature since the
proposed sharing of personnel would minimize the chance of workers
being idle. Main provides no basis for us to conclude that this
aspect of the evaluation was unreasonable.
Main also argues that the ratings assigned by the agency to DGR's
proposal under the "Appliance and equipment" evaluation item under the
first evaluation area and the "Quality control" evaluation item under
the second evaluation area should have been lower. Once again, Main
has simply disagreed with the ratings, which we conclude are supported
by the record.
For instance, although Main challenges the increase in DGR's rating on
the "Appliance and equipment" evaluation item from moderate risk to
low risk, the record shows that the rating was raised because DGR
modified its proposal, as a result of discussions, in order to comply
with a solicitation requirement that an annual inspection occur within
3 months of change in occupancy maintenance. On the "Quality control"
evaluation item, Main argues that DGR should have been assigned a
moderate or high risk rating, instead of low risk, because DGR's
quality control representative does not report directly to the
corporate office and has multiple duties. The protester again is
simply disagreeing with the assigned rating based on its view that it
should have been lower; that disagreement provides no basis to
challenge the rating assigned by the evaluators.
Main also argues that the agency conducted unequal discussions. The
protester points out that the evaluators noted that in their initial
proposals both DGR and Main failed to provide addresses and phone
numbers of subcontractors. Main notes that while this issue was
raised during discussions with DGR--which corrected this discrepancy
in its proposal--the issue was not raised with Main, which therefore
did not have the same opportunity as DGR to improve its proposal
through discussions.
While the record shows that DGR, and not the protester, was given the
opportunity to correct the discrepancy, we find that Main was not
prejudiced as a result. As the agency points out, although Main did
not correct its proposal to include the addresses and phone numbers of
its subcontractors, Main's proposal received a rating of blue, low
risk, and was the highest ranked proposal under the management
organization and staffing evaluation area. In addition, the source
selection statement does not mention the failure to include addresses
and phone numbers of subcontractors as a distinguishing factor in the
selection decision between DGR and Main. Under the circumstances, we
conclude that Main was not prejudiced by the agency's failure to raise
this matter in discussions.[6]
Finally, Main argues that the agency improperly permitted DGR to amend
its proposal late. In a letter to each offeror requesting proposal
clarifications, the agency stated that proposal changes must be
received on January 23. The protester notes that the agency's
"Deficiency/Clarification Log" indicates that DGR's responses were
received on January 25, and argues that DGR's clarifications, which
included information essential for determining the acceptability of
DGR's proposal, should not have been considered. In response, the
agency explains that the log to which Main refers was used to record
the technical evaluation team's receipt of discussion responses, not
the agency's receipt, and that all discussion responses, including
those of DGR, were received before the deadline. We have no basis to
question the agency's explanation, and simply note that the log shows
that the protester's discussion responses also were received on
January 25.
In light of the above, we see no need for the reopening of
discussions. Therefore, we recommend that the SSA reassess whether
DGR's proposal offered the best value to the government in light of
the points discussed in this decision. If the SSA decides that the
award should not have been made to DGR, the agency should terminate
DGR's contract for the convenience of the government and make award as
appropriate. In any event, the Air Force should reimburse Main for
its reasonable costs of filing and pursuing this protest, including
reasonable attorneys' fees. 4 C.F.R. 21.6(d)(1) (1995). In
accordance with 4 C.F.R. 21.6(f), Main's certified claim for such
costs, including the time expended and costs incurred, must be
submitted directly to the agency within 60 days after receipt of this
decision.
The protest is sustained.
Comptroller General
of the United States
1. The color ratings assigned were: blue-exceptional;
green-acceptable; yellow-marginal; and red-unacceptable. Risk ratings
of high, moderate, and low were used.
2. The evaluators assigned "+" or "-" designations to some of the
color ratings.
3. The RFP performance work statement (PWS) does not reference an
Assistant Manager; rather, the PWS refers to an Alternate Manager who
is to act for the contractor when the Contract Manager is absent.
4. In response to Main's allegation concerning the authority of the
contract manager and assistant contract manager, the agency argues
both Main and DGR received the same rating of blue, low risk under the
management organization and staffing area, item 3: "Role and
authority of the Contract Manager," the evaluation item which concerns
the authority of the contract manager and the assistant manager.
Thus, although the agency does not challenge Main's assertion that
Main's proposal also offered managers with appropriate authority,
essentially the agency argues that the failure to recognize this
authority as set out in Main's proposal made no difference in the
evaluation and selection since both proposals were highly rated on the
relevant item. This argument misses the point. The issue is not the
manner in which ratings were assigned by the evaluators; rather, as
explained, the selection decision was flawed because the SSA selected
DGR based, in part, on his erroneous belief that only DGR's proposal
had provided the contract manager and assistant manager with proper
authority.
5. Main also argues that in spite of the fact that its proposal and
DGR's proposal both offered [deleted] telephone lines--[deleted] more
than required by the RFP--the SSA gave only DGR credit for three
telephone lines in the source selection. While the agency notes that
there is no reference to three telephone lines in Main's technical
proposal, Main argues that the itemized cost breakdown in its price
proposal included three telephone lines. Nonetheless, the RFP stated
that "[t]he technical proposal shall contain sufficient information to
enable the evaluator to make a complete analysis of the proposal with
respect to the evaluation criteria set out in the [RFP]." We think
this should have informed a reasonable offeror that technical credit
would be assigned based only on review of the technical proposal.
6. We are aware of no requirement in the RFP, and the protester refers
to no requirement, that a proposal include this information.
Therefore, it was not a matter of technical acceptability.