BNUMBER: B-270530; B-270530.2
DATE: March 13, 1996
TITLE: Mary Jo McDonough
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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:Mary Jo McDonough
File: B-270530; B-270530.2
Date:March 13, 1996
Patricia H. Wittie, Esq., Sedky, Wittie & Letsche, for the protester.
Anna Chytla, Esq., U.S. Agency for International Development, for the
agency.
Andrew T. Pogany, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
In a procurement for personal services contract, the contracting
agency's technical evaluation and scoring of competing applicants'
resumes and qualifications has not been shown to be unreasonable where
its scoring in two technical areas was reasonable and the remaining
arguments and assumptions of the protester, ranked third of three
applicants, would not displace the second-ranked applicant as eligible
for award ahead of the protester.
DECISION
Mary Jo McDonough, the incumbent, protests the award of a personal
services contract (PSC) to [deleted] under an unnumbered job
announcement issued by the U.S. Agency for International Development
(AID) for a program and communications specialist in Jakarta,
Indonesia.[1] The protester principally argues that the agency
violated its own hiring freeze, which, properly enforced, would have
mandated a sole-source extension of the protester's contract; that the
agency failed to follow the "solicitation's" evaluation criteria; that
the agency applied undisclosed requirements and evaluation criteria in
selecting [deleted]; and that the agency otherwise misevaluated the
qualifications of the PSC applicants.
We deny the protest.
STATUTORY AND REGULATORY BACKGROUND
Section 636(a)(3) of the Foreign Assistance Act of 1961, as amended,
22 U.S.C. sec. 2396(a)(3) (1994), authorizes AID to contract with
individuals for personal services abroad. This statutory authority is
generally implemented by provisions found in the AIDAR, 48 C.F.R. sec.
Ch. 7, App. D. Section 5(c) of the AIDAR, App. D states:
"[PSCs] are exempt from the requirements for full and open
competition with two limitations that must be observed by
Contracting Officers:
(i) offers are to be requested from as many potential offerors
as is practicable under the circumstances. . . ."
While the applicable statutory and regulatory provisions envision the
use of procurement contracts for the services in question,[2] and
although 22 U.S.C. sec. 2396(c)(3) provides that individuals awarded
personal services contracts "shall not be regarded as employees of the
United States Government for the purpose of any law administered by
the [Office of Personnel Management]," the regulations recognize that
PSCs create essentially an employer-employee relationship, placing the
individual under direct supervision of government employees. App. D,
section 1(b)(1). The AIDAR, App. D, section 6 also states that
"[n]egotiating a [PSC] is significantly different from negotiating a
nonpersonal services contract because it establishes an
employer-employee relationship; therefore, the selection procedures
are more akin to the personal selection procedures."
In this regard, the agency's Project Officer prepares a written
statement of duties and a statement of minimum qualifications for the
position. This statement is incorporated into a procurement request,
which is designated as a Project Implementation Order/Technical
Services (PIO/T). Additionally, the PIO/T contains, among other
things, the foreign location of the job, the length of the contract,
and the basic education, training, experience, and skills required for
the position. The contracting officer prepares a solicitation, which
contains generally SF171s and SF171As, a detailed statement of duties
or a completed position description for the position, and a copy of
the prescribed contract cover page, schedule, and general provisions.
The job announcement is then issued by the contracting officer, and
resumes are received. Award of the PSC is strictly based on technical
qualifications, not price. AIDAR, App. D, section 5(c)(3). The
project officer is responsible for reviewing and evaluating the
applications and, if deemed appropriate, may interview the applicants
before submitting his selection of the successful candidate to the
contracting officer. AIDAR, App. D, section 6(a). The contracting
officer subsequently negotiates a fair and reasonable salary with the
successful applicant, as previously selected by the project officer,
based on the applicant's salary history. AIDAR, App. D, section 6(b).
These procedures were generally followed here.
FACTUAL BACKGROUND
Ms. McDonough is the spouse of an employee of the United States
Embassy in Jakarta. Her incumbent contract expired September 30,
1995. Previously, on July 3, 1995, AID imposed a freeze on personnel
hiring in Washington, D.C. and abroad (the freeze included civil
servants and PSCs). Under the terms of the freeze, Mission Directors
(such as the one in Jakarta) were authorized to permit exceptions to
the freeze. Extensions of contracts like Ms. McDonough's PSC were
permitted under the freezes; however, new PSCs could only be awarded
if the Mission Director authorized an exception to the freeze.
On August 1, the agency's Program and Project Support (PPS) Office
requested an exception to the freeze to recompete this position
because this
"position will differ significantly from the previous scope
[inasmuch] as half the contractor's effort will focus on a new
activity: the design, conduct, and assessment of the Mission's
first annual 'Customer Survey' [which will require] strong skills
in survey design, interpretation and data manipulation [which
were not previously required]."
The Mission Director authorized PPS to proceed with the competition.
At that time, Ms. McDonough was so advised.
On August 2, the agency published a notice of employment opportunity
which described the following duties:
"(1) prepare public information on Mission activities and
coordinate with various offices of the United States Government
as well as the offices of the Indonesian Government;
(2) design, conduct, and analyze the first annual USAID/Indonesia
customer survey; and
(3) manage and coordinate Mission-wide performance-based
monitoring systems with tracks, benchmarks and progress
indicators of the program's strategic objectives and related
results packages."[3]
Additionally, the notice described the minimum qualifications for the
position, including: (1) skills and knowledge (documented ability to
edit and write summaries of technical reports in fluent English,
command of Wordperfect and LOTUS 123 spreadsheet software); (2) prior
work experience (three or more years of professional work experience
in positions requiring extensive writing, data collection, and
analysis for the consumption of technical and managerial personnel and
the public); and (3) academic training (an undergraduate degree in a
relevant field).[4]
Five applications were received. On September 12, the Dependent
Employment Committee (DEC) interviewed all candidates. DEC is an
informal committee consisting of AID and Department of State employees
and has no contracting or hiring authority. DEC found that all
candidates met minimum requirements, but ranked, without scoring, the
top three applicants as Ms. McDonough, [deleted], and [deleted],
respectively.[5] Subsequently in September, the agency created a
technical evaluation committee (TEC) composed of three individuals who
reviewed the applications, interviewed the applicants and then
evaluated them on a numerical scoring basis.[6]
The initial evaluation encompassed skills and knowledge ([deleted]
points out of a possible [deleted] points), prior work experience
([deleted] points), academic training ([deleted]), and language
abilities ([deleted] points). The TEC ranked the applicants as
follows: (1) [deleted] ([deleted] points); (2) Ms. McDonough
([deleted] points); and (3) [deleted] ([deleted] points). During a
second, revised evaluation shortly thereafter, the TEC, at the request
of the contracting officer, added and evaluated another criterion,
availability for a 12-month contract, which was worth an additional
[deleted] points. The latter criterion was not evaluated as a go/no
go factor, but as one of the several relative and comparative
evaluation factors to be weighed and scored. The final rankings for
the second evaluation were as follows: (1) [deleted] ([deleted]
points out of a possible [deleted] points); (2) [deleted] ([deleted]
points); and (3) Ms. McDonough ([deleted] points). The agency awarded
the PSC to [deleted] on September 30, 1995. This protest to our
Office followed an agency-level protest filed with AID by Ms.
McDonough.
HIRING FREEZE
The protester argues that the agency violated the personnel freeze and
wrote a justification for an exception "that does not withstand even
cursory analysis." For example, the protester argues that the hiring
freeze was based on a budget crisis that the agency described as "so
much more severe than we expected [that] even those exceptions
[previously granted] must cease." Also, the protester contends that
the agency completely failed to adequately document the request for
exception to reflect the "severe negative impact" on the agency that
would result if the exception were not granted. The protester also
states that competing this contract "costs more than renewing an
existing one," especially since the successful contractor's salary
here was ultimately negotiated at a salary rate [deleted] higher than
the protester's incumbent salary.[7]
The basic thrust of the protester's arguments is that her contract
should have been extended on a sole-source basis. However, we will
not generally question an agency's decision to procure services
competitively rather than to obtain them on a sole-source basis since
the objective of our bid protest function is to ensure competition for
government contracts. See generally Sentinel Elecs., Inc., B-212770,
Dec. 20, 1983, 84-1 CPD para. 5. We also think that a general agency
hiring freeze (applicable, as here, to agency civil servants and PSCs)
and any exceptions to such a hiring freeze are matters of executive
policy within the agency's discretion and do not constitute a
procurement issue cognizable under our bid protest function. See
American Airlines, Inc., B-258271, Dec. 29, 1994, 95-1 CPD para. 5.
EVALUATION OF RESUMES
As stated above, the protester was third ranked in the final selection
results. In her protest submissions, the protester challenges the
agency's evaluation of the qualifications of both the top-ranked
candidate, [deleted], and the second-ranked candidate, [deleted]. The
protester has submitted to our Office specific adjustments to the
TEC's scoring (lowering [deleted] and [deleted] numerical technical
scores and raising the protester's numerical technical scores in
specific areas) that she believes would correct the agency's allegedly
improper and erroneous scoring. In this regard, the record shows that
the agency, along with the protester, considered and treated the
technical scoring results as dispositive for the selection decision.
Neither the protester nor the agency argues that the rankings based on
the technical scoring should not control the selection decision.[8]
Consequently, we need only resolve the reasonableness of the agency's
scoring in two specific evaluation areas to determine that the
protester is not in line for award regardless of all her other
arguments.
First, the protester contends that scoring for experience should have
placed her ahead of any candidate. She notes that the DEC, which
ranked her first, stated:
"Ms. McDonough was top-ranked [because] she already is performing
several job elements successfully and has the necessary
background in survey design, data collection and analysis to take
on the customer survey recently added as the top priority for
this position over the next six months."
Based solely on her examination of the resumes (written submissions)
of the other candidates and the scoring sheets obtained when she
received the agency report on her first protest, the protester claimed
that "[deleted] has very little experience with data survey and
manipulation, and [deleted] has less." In fact, the record shows that
the TEC rated Ms. McDonough the highest in this evaluation area
([deleted] out of [deleted] points); [deleted] received [deleted]
points; and [deleted] received ([deleted] points). Further, contrary
to the protester's assumptions, the TEC's evaluation was not limited
to the written submission of candidates. The TEC interviewed in depth
each candidate concerning, among other things, the candidates'
writing, analytical, and data collection skills. The agency states as
follows with respect to these interviews:
"Ms. McDonough did have certain strengths, such as prior survey
and [AID] experience. But the other candidates also had
exceptional professional experience which was comparable to Ms.
McDonough's. . . . [deleted] explained during [deleted]
interview that [deleted] was performing an extensive national
survey [deleted]. [Deleted] also confirmed to the Committee
during [deleted] interview that over the past [deleted] requiring
the assessment of customers' viewpoints. . . . This experience
included survey work for [AID] overseas."
Because of her alleged superiority in prior work experience, the
protester requests that we adjust the TEC's scoring and award her an
additional [deleted] technical evaluation points, [deleted] from one
evaluator and [deleted] from another. In this regard, the protester
contends that she could have furnished the TEC with numerous other
customer surveys, in addition to the information she provided to the
TEC, but was told by the TEC not to do so. We think the agency's
scoring was reasonable. Despite the protester's admitted strengths in
conducting surveys (prior experience), the protester has offered
nothing to rebut the findings by the TEC, based on the interviews
which the protester did not attend, that the other candidates had
similar and comparable experience. Since the protester received the
highest score in this area, and since the agency has shown that the
other candidates also had comparable experience, we see no reason to
disturb the agency's scoring and findings, which rated the other
applicants below the protester in this area but at a comparable level
nonetheless.[9]
Second, the protester argues that in the evaluation area of academic
training [deleted] score from one evaluator of [deleted] points out of
[deleted] points should be reduced to 14 points because the protester
claims that the agency used undisclosed criteria in evaluating the
candidates by giving credit for academic degrees that were not
directly relevant to the PSC position.[10] [Deleted] resume showed
the following academic training:
[Deleted]
[Deleted]
[Deleted]
In comparison, Ms. McDonough's resume showed the following academic
training:
"B.A. English Literature, Vassar College
M.B.A. Management Science, University of Rhode Island
Hindi, 24 weeks, Foreign Service Institute
South Asian Studies, 4 weeks, Foreign Service Institute
Bahasa Indonesia, 24 weeks, Foreign Service Institute
Southeast Asian Studies, Foreign Service Institute"
The agency, in its evaluation scoring sheets, evaluated, in addition
to "relevant" graduate and undergraduate degrees, each candidate's
"undergraduate degree in nonrelevant field," and gave [deleted]
[deleted] points for [deleted]. The protester disputes this because
the agency itself, on the scoring sheets, categorized the [deleted] as
a "nonrelevant field." We think that, whatever terminology is
employed, the agency's evaluation here of a candidate's [deleted] was
rational and relevant to the evaluation for a position requiring
extensive written English. In this regard, the protester states that
if she had been on notice from the solicitation that [deleted] would
be evaluated, she would have advised the TEC that she possessed a
minor in mathematics. However, we find that a reasonable candidate
applying for a competitive position requiring, among other things,
extensive data and survey work would, on her own initiative, list all
educational qualifications she possesses, including especially any
mathematical academic training. The protester's failure to do so, in
our view, was solely her responsibility.
The protester also complains that one evaluator valued the [deleted]
degree of [deleted] as more valuable than the [deleted] of Ms.
McDonough from the University of Rhode Island. The short answer is
that since different people and experts can reasonably agree or
disagree as to the eminence or value of different university degrees,
we will not disturb the scoring or the award on this basis in the
absence of a showing that it was unreasonable.
Finally, the protester insists that there should never have been any
evaluation of 12-month availability or language ability as evaluation
criteria because they were not listed in the job announcement. For
purposes of this decision, we accept the protester's arguments.
However, given our finding as to the reasonableness of the agency's
scoring on prior experience and academic training, and given no other
challenge by the protester to [deleted] scoring and ranking, the
record shows that even if we eliminate, as requested by the protester,
the 12-month availability and language ability as criteria for
selection, the protester would still not be in line for award.
Rather, under the protester's arguments and assumptions, the record
shows that [deleted] would be in line for award. We therefore see no
useful purpose to be served by considering the protester's additional
arguments concerning the agency's evaluation or [deleted] selection.
See Dimensions Travel Co., B-224214, Jan. 13, 1987, 87-1 CPD para. 52.
The protest is denied.
Comptroller General
of the United States
1. The PSC is a contract that creates an employer-employee
relationship between the agency and the contractor. See Federal
Acquisition Regulation (FAR) sec. 37.101. Under an AID PSC for services
abroad, the agency pays a portion of the contractor's health and life
insurance, pays lodging and living allowances under specified
circumstances, provides health rooms, and grants sick and annual
leave, which is accrued on the same basis as government employees.
The contractor is also eligible to receive benefits from injury,
disability or death under the Federal Employees' Compensation Act
administered by the Department of Labor. See AID Acquisition
Regulation (AIDAR), 48 C.F.R. Ch. 7, App. D (1994). The position
solicited here was limited to dependents of United States government
employees.
2. Our Office thus has jurisdiction over this protest as it concerns a
contract for the procurement of services. See 31 U.S.C. sec. 3551(1)
(1994); FAR sec. 37.104.
3. The employment notice also contained other duties that could be
assigned to the successful applicant, including program backstop for
the Office of Human and Institutional Resource Development, and to
assist the Women in Development and Evaluation Officer. This list of
duties was not intended to be exhaustive.
4. Although the agency's PIO/T contained the length of the contract
(12 months--starting approximately September 30, 1995), the employment
notice itself did not specify the period of the PSC. The agency
states that Ms. McDonough knew at this time that AID contemplated
awarding a contract for the full 12-month period. Ms. McDonough was
scheduled to definitely leave Jakarta in June 1996 (approximately 3
months before the new PSC would expire) and states that she was not
aware or made aware by the agency that her shorter job availability
would be a detriment in any way to her securing the position.
5. The DEC noted that Ms. McDonough's "scheduled departure from post
in less than 12 months is a disadvantage for long-term continuity, but
she has the advantage of knowledge already acquired of PPS
specifically and USAID [which should put her in the] best position to
be able to carry out the survey project by the stipulated deadline of
April 1." [Deleted]
6. We will limit our discussion to the evaluation of the three top
applicants.
7. The protester also argues that the agency did not have funds to pay
the successful applicant's salary based on the fact that [deleted]
contract, as awarded, shows only $46,388 obligated, while the total
contract price was [deleted]. The contracting officer states that he
obligated only fiscal year 1995 budget funds since the contract was
signed in that year and the remainder would be funded by 1996 fiscal
year funds. The agency also states that this type of incremental
funding is common. Although the protester argues that there is no
1996 fiscal year budget in effect, the agency has been operating under
a continuing resolution for 1996 fiscal year which provides funding
for that year.
8. The TEC did prepare short narrative support for the scores it
awarded to each candidate. The agency, however, relies only on the
reasonableness of the scoring, as reflected in the evaluation record,
to support its selection decision.
9. There was also a LOTUS test given during the interviews, but the
record does not show that the results of this test (with only a
[deleted]-point difference between the candidates) had any
determinative effect on the overall selection decision.
10. According to the protester, "[b]oth [deleted] and [deleted] were
given improper credit for [deleted] by [deleted]. . . . Accordingly
the scores for these two individuals must be reduced by the amount of
the improper credit (in this case, [deleted] points each)."