BNUMBER: B-270445
DATE: March 6, 1996
TITLE: PADCO, Inc.
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Matter of:PADCO, Inc.
File: B-270445
Date:March 6, 1996
Kenneth A. Martin, Esq., Riley & Artabane, P.C., for the protester.
Gary M. Winter, Esq., United States Agency for International
Development, for the agency.
John A. Carter, Esq., and John G. Brosnan, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency's acceptance of proposed individual who had less than the
required level of language proficiency was not prejudicial to the
protester where the protester's own nominee had a similar deficiency
and also was found acceptable.
2. Protest of agency's evaluation of the qualifications of the
awardee's proposed key employee is denied where the record shows that
the evaluation was reasonable and was conducted in accordance with the
solicitation's evaluation criteria.
3. Unavailability of host country officials to participate in the
evaluation of proposals as specified in a solicitation for contract
for assistance in developing host country housing does not invalidate
evaluation that was reasonable and in accordance with the
solicitation's evaluation criteria.
DECISION
PADCO, Inc. protests the award of a contract to Technical Support
Services, Inc. (TSS) by the United States Agency for International
Development (USAID) under request for proposals (RFP) No. MOROCCO
95-P-003. PADCO challenges the award to TSS because, according to the
protester, the awardee's proposal did not offer long-term personnel
who conformed with the RFP requirements and the agency failed to
follow its announced evaluation scheme.
We deny the protest.
The USAID office in Morocco issued the RFP on June 9, 1995, to obtain
the services of a technical support contractor for an "Urban and
Environmental Support" project that is part of a larger program to aid
Morocco in alleviating and resolving problems with substandard housing
and environmental services. The RFP contemplated a 4-year cost
reimbursement contract for long- and short-term technical assistance
and training to assist Moroccan agencies and municipalities.
The contractor's effort was to be headed initially by a "Chief of
Party" (COP), and by a project planning specialist who would be
responsible for seconding the COP in all management and technical
oversight and would be expected to replace the COP in the final year
of the contract. The RFP stated that the COP would be responsible for
managing all contract components and activities and would serve as the
contractor's technical representative in interactions with both USAID
and the Government of Morocco. The COP was also to have primary
responsibility for ensuring that all USAID project implementation
regulations and procedures were followed. The RFP required that the
COP and the planning specialist have French and English language
proficiency at least at Foreign Service Institute equivalent S3/R3.
The RFP suggested that the COP be an expatriate and that the planning
specialist be a Moroccan national or other resident hire.
The RFP stated that offerors could suggest alternate personnel
configurations, so long as they explained their deviations from
USAID's suggestions, and that the COP did not have to be a leading
expert in any particular aspect of the field because that expertise
could be provided through the contractor's short-term personnel. The
RFP also stated that it would be acceptable to rearrange tasks, modify
the number of work-months per person depending on the individuals
selected, or propose individuals with slightly different
specializations than those suggested, so long as all essential tasks
were covered by a combination of long- and short-term personnel
without resulting in excessive costs.
The RFP provided that proposals would be evaluated by a committee of
USAID officers and representatives of the host government, and
identified the evaluation criteria and their relative weights as
follows:
Understanding of Housing and Urban Development in Morocco20
points
Overall Approach to the Project 35 points
Innovativeness and Viability of General Approach and
Methodology15 points
Quality of Long-Term Personnel 40 points
Quality of Short-Term Personnel 30 points
Evidence of Relevant Corporate Experience and Ability25 points
Cost Containment and Reasonableness of Costs 35 points
With regard to the evaluation of long-term personnel, the RFP stated
that the points would be allocated between the COP nominee (25 points)
and the project planner (15 points) and that the evaluation would be
based primarily upon relevant experience, appropriate technical and
language skills and relevant academic training.
Both PADCO and TSS proposed project planners that did not quite
satisfy the RFP's language proficiency requirement. After an
evaluation by USAID personnel, USAID eliminated the third firm's
proposal from the competitive range. TSS received an initial
technical score of 133.5 and a cost score of 26; PADCO's technical
score was 116 and its cost score was 18. During discussions both were
asked about the language capabilities of their project planners and
each responded in similar fashion--by proposing accelerated language
training for the original nominee or, alternatively, another candidate
with greater language proficiency. In both instances, the evaluators
preferred the original candidates and considered the accelerated
language training to be satisfactory. In the final evaluation the
overall scores for technical and cost were 159.5 for TSS and 134 for
PADCO. The agency awarded the contract to TSS, which had the highest
technical rating and offered the lowest proposed cost.
PADCO argues that USAID improperly waived or relaxed the solicitation
requirement regarding project planner language proficiency by
accepting TSS' proposal. PADCO further argues that TSS' COP does not
satisfy the requirement for knowledge of USAID's project regulations
and procedures. Finally, the protester asserts that USAID failed to
adhere to the RFP's evaluation scheme by excluding representatives of
the Moroccan government from the technical evaluation committee.[1]
PROJECT PLANNER
The evaluation record shows that the agency was concerned that the
language skills of the project planners offered by both firms fell
short of the RFP requirements. The matter was brought to the attention
of both firms during discussions. Each firm responded in a similar
manner, offering to train the candidates originally proposed or to
offer alternate candidates possessing the requisite language skills.
In both instances the agency evaluators chose to accept the original
candidate because of the candidates' other qualifications.
The protester argues that this waiver/relaxation of the solicitation
requirements was improper and takes the position that both proposals
should have been rejected or the solicitation amended. We do not,
however, understand how the protester was prejudiced by the agency's
action. Both firms offered candidates with the same deficiency and
both offered essentially the same solution during discussions, which
the agency accepted in both instances. There is nothing in the record
that indicates the deficiencies resulted in inconsistent ratings of
the proposals. Prejudice is an essential element of every viable
protest, McDonnnell Douglas Corp., B-259694.2;
B-259694.3, June 16, 1995, 95-2 CPD para. 51, and we will not sustain a
protest where the record does not establish prejudice. We thus have
no basis upon which to object to the agency's action in this regard.
CHIEF OF PARTY
PADCO argues that USAID acted improperly by accepting the TSS proposal
despite the fact that the firm's proposed COP did not have the
qualifications to meet the RFP requirement that the COP be responsible
for ensuring adherence to all USAID project implementation regulations
and procedures. The protester points out that in order to propose its
fully qualified COP it had to offer a much higher salary than was
proposed by TSS for TSS' less well-qualified candidate, and PADCO
therefore was prejudiced in the evaluation.
The record shows that the evaluators noted that TSS' COP did not have
much background in USAID regulations and procedures. They so informed
TSS during discussions. The firm responded by admitting that its
proposed COP was not an expert in USAID procedures but explained that
he had extensive experience in the civil service and that he would be
assisted by others on the proposal team who have such experience.
This was acceptable to the agency.
In reviewing the propriety of an agency evaluation, it is not our
function to independently evaluate proposals and substitute our
judgment for that of the contracting agency. North Florida Shipyard,
Inc., B-260003 et al., Apr. 14, 1995, 95-1 CPD para. 201. Rather, we will
review an evaluation only to ensure that it was reasonable and
consistent with the evaluation criteria in the solicitation. Id.
There was no requirement in the RFP that a COP have any particular
background, just that he be able to assume the primary responsibility
for ensuring that USAID regulations and procedures were followed. The
evaluators concluded that TSS' COP could adequately perform this
function based upon his general civil service background and on the
fact that others with the requisite knowledge of USAID regulations and
procedures would be available to assist him. We do not find this
conclusion unreasonable.
EVALUATION TEAM
PADCO argues that USAID violated the evaluation scheme set forth in
the solicitation by failing to include representatives of the Moroccan
government on the proposal evaluation team. According to the
protester, those officials have unique insight into the housing
problems that are the subject of the contract and, by excluding them,
USAID denied PADCO the competitive advantage inherent in its extensive
past experience in working with the Moroccan government.
The RFP did specify that the proposals would be evaluated by a
committee of USAID officers and representatives of the host
government. However, according to the agency, it was unable to
provide such an evaluation group because the host country
representatives were not available.
Generally, the composition of a technical evaluation board or
committee is within the discretion of the contracting agency, and we
will not question the composition of the board or committee unless
there is evidence of fraud, bad faith, conflict of interest, or actual
bias. MGM Land Co.; Tony Western, B-241169; B-241169.2, Jan. 17,
1991, 91-1 CPD para. 50. Further, even the fact that the composition of
the evaluation committee or board changes during the course of a
procurement does not automatically indicate anything improper, so long
as the underlying evaluation is reasonable and consistent with the
evaluation criteria. See Space Applications Corp., B-233143.3, Sept.
21, 1989, 89-2 CPD para. 255.
It is unfortunate that the host country representatives were not able
to participate in the evaluation. Nevertheless, in view of the fact
that the record does not show that the evaluation that was conducted
was unreasonable, inconsistent with the stated evaluation criteria, or
otherwise improper, this matter provides no basis upon which to
question the selection of TSS.
The protest is denied.
Comptroller General
of the United States
1. In its initial protest to our Office, PADCO also contended that
TSS' COP was a third-country national, not an expatriate; that TSS'
costs could not be realistic; and that USAID made the award to TSS
based solely on TSS' lower costs. USAID addressed these allegations
in its report on the protest and PADCO did not respond to USAID's
positions on these issues. We therefore consider PADCO to have
abandoned these allegations. D & M Gen. Contracting, Inc., B-259995;
B-259995.2, May 8, 1995, 95-1 CPD para. 235.