BNUMBER: B-270341.2
DATE: March 1, 1996
TITLE: SRS Technologies
**********************************************************************
DECISION FOR PUBLIC RELEASE
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:SRS Technologies
File: B-270341.2
Date:March 1, 1996
Alan M. Grayson, for the protester.
J. Scott Merrell, for Research Triangle Institute, an intervenor.
Terrence W. Carlson, Esq., Department of Transportation, for the
agency.
Peter A. Iannicelli, Esq., and Michael R. Golden, Esq.,Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest challenging agency's evaluation of proposals for technical
support services is denied where the evaluation was reasonable and
consistent with the solicitation's stated evaluation scheme.
2. Agency conducted meaningful discussions where it reasonably led
the protester into area of its proposal that required amplification or
clarification.
3. Protest that contracting agency should have disqualified the
awardee because of organizational conflicts of interest is denied
where the awardee certified that it did not have any conflicts of
interest and provided a plan for reporting and mitigating any
potential conflicts, and the contracting officer reasonably determined
that the awardee's mitigation plan was a good one and that the awardee
had met its conflict of interest obligations under past contracts with
the agency.
DECISION
SRS Technologies protests the award of a technical support services
contract to Research Triangle Institute (RTI) by the Department of
Transportation (DOT) pursuant to request for proposals (RFP) No.
DTOS59-95-R-00006. The protester alleges that the agency did not
evaluate technical proposals and conduct a cost/technical tradeoff in
accord with the RFP's evaluation scheme, did not hold meaningful
discussions, and improperly accepted RTI's offer even though the firm
has organizational conflicts of interest. We deny the protest.[1]
Issued on March 31, 1995, the RFP solicited proposals for providing
technical expertise to DOT's Office of Commercial Space Transportation
(OCST) in support of its regulatory safety responsibilities in each of
four distinct work areas as follows: Area 1 - Enforcement,
Investigations, and Inspections; Area 2 - Commercial Launch Sites and
Site Operations; Area 3 - Orbital and Reentry Issues and Strategy;
Area 4 - Launch Safety Operations Evaluation. Offerors were allowed
to submit proposals for any one or all of the work areas. The RFP
stated that contracts would be awarded to those offerors whose
proposals represented the best value to the government, cost and other
factors considered. The RFP envisioned award of one or more
cost-plus-award-fee contracts; each contract would be for a 1-year
base period and would include options for 4 additional years.[2]
Eleven offers were received by the May 19 closing date. After
evaluation of initial proposals, five were included in the competitive
range. Discussions were held with all competitive range offerors, and
best and final offers (BAFO) were received and evaluated. After
reviewing the technical evaluations and considering the evaluated
costs of the BAFOs, the contracting officer determined that RTI's
highest technically rated proposal would best meet the government's
needs even though the proposal was evaluated as highest in total cost.
Therefore, on September 29, the contract was awarded to RTI. The
agency debriefed SRS on October 26, and SRS filed this protest shortly
thereafter.
The protester contends that the evaluation of proposals was
unreasonable. According to the protester, the evaluation record
contains several statements praising SRS's initial proposal regarding
SRS's [DELETED]. SRS contends that the evaluators completely reversed
themselves and criticized SRS's BAFO as it related to [DELETED].
Conversely, SRS states that the evaluators considered a key weakness
of RTI's initial proposal to be related to RTI's [DELETED]. According
to SRS, the evaluators inexplicably reversed themselves and praised
RTI's BAFO for demonstrating RTI's complete [DELETED]. SRS contends
that the contracting officer's cost/technical tradeoff analysis
necessarily was flawed because it was based upon the unreasonable
technical evaluation.
Our Office will question an agency's evaluation of proposals only if
the evaluation lacks a reasonable basis or is inconsistent with the
stated evaluation criteria for award. See DAE Corp., Ltd., B-257185,
Sept. 6, 1994, 94-2 CPD para. 95. A protester's mere disagreement with
the agency over its technical evaluation does not establish that the
evaluation was unreasonable. Id. Here, our review of the evaluation
record (including each evaluator's handwritten notes, consensus
reports, and the source selection document) reveals no basis to
conclude that the evaluation was unreasonable or inconsistent with the
RFP's criteria.
The RFP stated that proposals would be evaluated on three technical
factors (technical approach, past performance, and personnel
experience) and cost. The RFP indicated that technical approach was
the most important factor and that past performance and personnel
experience were next in importance and were equal in weight. The RFP
stated that cost was also important but would be given less weight
than the three technical factors. The evaluation record shows that
each evaluator gave a qualitative rating (complete with narrative
discussion) to SRS's and RTI's proposals on each of the technical
evaluation factors, that the evaluation team then arrived at a
consensus rating (complete with narrative discussion) on each
evaluation factor, and that the process was repeated for initial
proposals and BAFOs.
The protester has taken out of context excerpts from individual
evaluators' narrative comments and from the evaluation team's
consensus reports in an effort to show that the BAFO evaluations were
radically inconsistent with the initial evaluations. However, the
excerpts presented by SRS do not accurately portray the overall
evaluation of either SRS's or RTI's proposal; our review finds that
the evaluations of initial offers and BAFOs were consistent.
SRS points out several instances in which the evaluators listed as
strengths
portions of its initial proposal concerning [DELETED], but argues
that, in
"a complete reversal," the evaluation team criticized SRS's BAFO
regarding [DELETED]. The record shows that the evaluators did, in
fact, praise SRS's initial proposal on some [DELETED] areas. For
example, the initial consensus report stated that SRS's proposal
"[DELETED]." This statement and others cited by SRS were all made in
the evaluation of the technical approach factor.[3] In evaluating
SRS's initial proposal as "[DELETED]" on technical approach, the
evaluators praised, among other things, SRS's understanding of
[DELETED].
Contrary to SRS's assertion, the BAFO evaluation did not represent a
reversal of the earlier praise of SRS's initial technical approach.
In fact, the record shows that in evaluating SRS's BAFO, the
evaluation team praised several aspects of SRS's technical approach
and rated it as [DELETED] on that factor. The negative statement
cited by SRS from the BAFO consensus report was made in connection
with the evaluation [DELETED] of SRS's [DELETED]. The evaluation team
stated:
"[DELETED]."
This statement is entirely consistent with the evaluation of SRS's
initial proposal wherein the evaluators criticized the proposal as not
demonstrating how SRS's [DELETED]. In sum, the evaluation record
shows that the evaluators were satisfied with SRS's technical approach
but, [DELETED] which resulted in ratings of [DELETED] on past
performance and experience.
Likewise, the evaluation record does not support the protester's
assertion that the evaluation of RTI's BAFO was inconsistent with the
evaluation of its initial proposal. Again, SRS has selected excerpts
from the evaluations that do not portray an accurate picture of the
full evaluation. SRS cites two negative comments made by individual
evaluators when evaluating RTI on past performance. The truth is that
the cited criticisms were included with a host of positive comments
made by evaluators concerning RTI's relevant past performance on a
number of contracts, some of which were with OCST. The positive and
negative comments were considered by the entire team and a consensus
rating of "[DELETED]" was given for past performance in both the
initial and BAFO evaluations. The positive statement cited by
SRS--[DELETED]--as "another inexplicable reversal" was neither
inexplicable nor a reversal of the earlier evaluation. The statement
was made in connection with the evaluation of RTI's technical approach
and was consistent with the initial evaluation as evidenced by the
fact that RTI received [DELETED] ratings for both its initial proposal
and BAFO on the technical approach factor.
SRS has not shown and the record does not support a finding that the
technical evaluations were unreasonable or otherwise improper.[4]
Therefore, the protester's argument that the cost/technical tradeoff
analysis was flawed because it was based upon unreasonable technical
evaluations provides no basis for overturning the agency's selection
of RTI's higher priced, more technically qualified proposal.
The protester alleges that the agency's discussions with it were not
meaningful because the evaluators downgraded its proposal based upon
their concern about SRS's [DELETED], but the agency did not advise SRS
of that perceived deficiency in its initial proposal. Therefore, SRS
contends, it unfairly was not given an opportunity to revise its
proposal or otherwise to allay the evaluators' concern.
For discussions to be meaningful, an agency must advise an offeror of
the deficiencies, weaknesses or excesses in its proposal that require
amplification or clarification to have a reasonable chance at
receiving award. See Gutierrez-Palmenberg, Inc., B-255797.3 et al.,
Aug. 11, 1994, 94-2 CPD para. 158; See
DAE Corp., Ltd., supra. Agencies, however, are not required to
conduct all-encompassing discussions or discuss every element of a
proposal receiving less than the maximum rating. Id. They need only
lead an offeror generally into the areas of its proposal that require
amplification. Gutierrez-Palmenberg, Inc., supra.
The evaluators rated SRS's initial proposal "[DELETED]" on technical
approach, the most important evaluation factor. Contrary to SRS's
assertion, the record does not show that the proposal was downgraded
on technical approach because of SRS's approach to [DELETED]. As
noted earlier, the evaluators actually stated that this facet of the
proposal was [DELETED]. The evaluation panel also stated, among other
things, that SRS had demonstrated [DELETED]. Because SRS's technical
approach was considered acceptable, the agency properly decided that
there was no need to conduct discussions with SRS concerning its
technical approach essay. See Johnson Controls World Servs. Inc.,
B-257431; B-257431.5, Oct. 5, 1994, 94-2 CPD para. 222.
The evaluators rated SRS's initial proposal "[DELETED]" on the past
performance and personnel experience factors. In evaluating past
performance and personnel experience, the evaluators expressed concern
that SRS's corporate and personnel experience were [DELETED]. One
evaluator summarized the deficiency as follows: "[DELETED]." In this
respect, the RFP stated that offers should demonstrate how past
performance and personnel experience were related to performing the
required services, and the statement of work clearly emphasized that
required services would be [DELETED]. The RFP notified offerors that
they should explain how their corporate and employee experience would
help them perform the required services, [DELETED]."
In our opinion, the agency's discussions with SRS were meaningful.
After determining that SRS's initial proposal described acceptable
corporate and employee operating experience but [DELETED] the agency
provided SRS with two relevant written discussion items that were to
form the basis for oral discussions and revisions/clarifications to
SRS's BAFO. The first discussion item was:
"[DELETED]
The second was:
"[DELETED]"
These written discussion items should reasonably have led SRS into the
very areas of its proposal that needed amplification or clarification
(i.e., past performance and personnel experience), especially in view
of the RFP's statement concerning the [DELETED]. It should have been
clear to SRS that the agency was concerned about the relevance of
SRS's [DELETED]. Having led SRS into the areas of concern, DOT did
not have to tell SRS any more specifically what was the matter with
its proposal. See DAE Corp., Ltd., supra.
The protester also contends that RTI's offer failed to disclose that
RTI and its affiliates, employees, consultants, and subcontractors
have contracts or relationships with firms that have contracts
relating to space transportation with DOT or other government
agencies. SRS contends that under the terms of the RFP, RTI was
required to, but did not, disclose its organizational conflicts of
interest, and therefore DOT should have determined that RTI was
ineligible for award.
The Federal Acquisition Regulation (FAR) contains general rules that
prescribe limitations on contracting as the means of avoiding,
neutralizing, or mitigating organizational conflicts of interest. See
FAR subpart 9.5. The two underlying principles are preventing the
existence of conflicting roles that might bias a contractor's
judgment, and preventing an unfair competitive advantage. FAR sec.
9.505. Among other things, the FAR provides that contracts involving
technical evaluations of other contractors' offers or products, or
advisory and assistance services, generally should not be awarded to a
contractor that would evaluate, or advise the government concerning,
its own products or activities or those of competitors, without
appropriate safeguards to ensure objectivity and protect the
government's interests. FAR sec. 9.505-3.
The RFP required offerors to include in their proposals a statement
certifying that no conflicts exist or disclosing any past, present, or
planned organizational conflicts of interest; if a conflict existed,
the offeror was to describe how it would perform the contract in an
impartial and objective manner. The RFP required the contracting
officer to review the statement and, if a conflict was found to exist,
the contracting officer could either disqualify the offeror or award
the contract but include appropriate provisions to mitigate the
conflict.
RTI's proposal included a conflict of interest statement certifying
that: (1) RTI did not have any employees, consultants, or
subcontractors proposed for work under this contract who had any
financial interests involving organizations regulated by DOT; and (2)
RTI and its two proposed subcontractors had potential conflicts
relating to possible launch site applications that might arise in the
future. RTI proposed a plan whereby: [DELETED].
The responsibility for determining whether potential conflicts exist
with regard to a particular offeror or whether there is little or no
likelihood that such conflicts exist, and to what extent the firm
should be excluded from the competition, rests with the contracting
officer. See Meridian Corp., B-246330.4, Sept. 7, 1993, 93-2 CPD para.
129. Our Office will examine the contracting officer's judgment to
see if it is reasonable. See American Sys. Corp., B-239190, Aug. 6,
1990, 90-2 CPD para. 109.
Here, the contracting officer examined RTI's approach to handling any
conflicts of interest and determined that RTI could [DELETED] where
necessary in order to perform the required technical support services.
Based in part upon the fact that RTI [DELETED] the contracting officer
decided that RTI had proposed a good plan for mitigating any conflicts
of interest that might arise during the performance of the contract.
We see nothing unreasonable in the contracting officer's decisions in
those regards. SRS's disagreement with the agency provides no basis
for overturning the agency's judgments. Id.
The protest is denied.
Comptroller General
of the United States
1. The protester raised a host of arguments in support of these
allegations. We have considered all of SRS's arguments and find no
basis for sustaining the protest. We will discuss only the most
noteworthy arguments in this decision.
2. SRS's protest concerns only the award of a contract to RTI for Area
2 - Commercial Launch Sites and Site Operations. Therefore, unless
otherwise
noted, we will discuss only those procurement actions associated with
award
of the Area 2 contract in the remainder of this decision.
3. In order to evaluate technical approach, the RFP required offerors
to prepare an essay stating the offeror's view and understanding of
the issues/problems to be faced by OCST and the actions necessary for
OCST to carry out its regulatory responsibilities.
4. SRS also contends that the evaluation was unreasonable because its
proposal for Area 2 (commercial launch sites and site operations) was
downgraded for its approach to [DELETED] but its proposal for Area 4
(launch safety operations evaluation) was not downgraded for using a
similar approach. However, the record shows that the evaluators
actually complimented this facet of SRS's proposal, stating:
"[DELETED]." Moreover, each of the work areas requires support
services for different aspects of OCST's commercial launch program and
was evaluated by a different evaluation team, and there is nothing
unusual or improper in different evaluators having different
perceptions of the merit of a proposed approach, especially where, as
here, the work involves different aspects of the program. See, for
example, Centex Constr. Co., Inc., B-238777, June 14, 1990, 90-1 CPD para.
566.