BNUMBER: B-271079; B-271079.2
DATE: May 20, 1996
TITLE: Resource Applications, Inc.
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Matter of:Resource Applications, Inc.
File: B-271079; B-271079.2
Date:May 20, 1996
Jacob B. Pompan, Esq., and Gerald H. Werfel, Esq., Pompan, Ruffner &
Werfel, for the protester.
J. Michael Slocum, Esq., Slocum, Boddie & Murry, for RAO Enterprises,
Inc. d/b/a/ Integrated Laboratory Systems, an intervenor.
Anthony G. Beyer, Esq., Environmental Protection Agency, for the
agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Where contracting officer clearly based competitive range
recommendation on the proposal evaluation performed by the technical
evaluation panel, protest that contracting officer misrepresented to
source selection official protester's ability to perform the contract
is without merit.
2. Protester's proposal was properly eliminated from the competitive
range where proposal was evaluated as having numerous serious
deficiencies, such that it would have to be substantially rewritten to
be considered for award, and protester fails to show that evaluation
conclusions were unreasonable.
DECISION
Resource Applications, Inc. (RAI) protests the elimination of its
proposal from the competitive range under request for proposals (RFP)
No. D500055R1, issued by the Environmental Protection Agency (EPA) for
performance of Environmental Service Assistance Team (ESAT) support
services for various EPA programs.
We deny the protest.
The solicitation was issued on May 1, 1995, for ESAT support services
for four separate geographical areas. This protest concerns region
IV, which was set aside for small business concerns. Award was to be
based on a best value analysis using the following evaluation factors
(with relative weight, out of 1,000 points): management (300),
personnel (300), technical (200), corporate experience (100), and
sample situation scenarios (100). Technical merit was more important
than cost in the award decision.
Two offerors, RAI and RAO, responded to the solicitation. The
technical evaluation panel (TEP) assigned RAO's proposal 865 points,
with ratings of superior for five subfactors, good for six, and
adequate for one. The TEP found no major weaknesses in RAO's proposal
and concluded that RAO was fully qualified to satisfy all requirements
of the RFP. RAI's proposal was assigned 550 points, with ratings of
good for four subfactors, adequate for four, and less than adequate
for four. The TEP concluded that, based on the number of major
weaknesses in its proposal, RAI would have great difficulty satisfying
all solicitation requirements. After reviewing the TEP report and an
evaluation of the offerors' proposed costs and business
considerations, the contracting officer recommended to the source
selection official (SSO) that only RAO's proposal be included in the
competitive range. The SSO agreed and awarded the contract to RAO on
January 31, 1996, following discussions and submission by RAO of a
best and final offer (BAFO).
RAI challenges the award decision on numerous grounds. We find all of
RAI's arguments to be without merit. We discuss several below.
CONTRACTING OFFICER'S RECOMMENDATION
RAI protests that, in recommending to the SSO that RAI's proposal be
eliminated from the competitive range, the contracting officer
misrepresented the TEP's conclusions regarding the proposal.
Specifically, RAI states that, while the TEP report's conclusion that
RAI would have difficulty performing was based "on the information
submitted in [RAI's] proposal," the contracting officer's competitive
range recommendation expressed this conclusion without indicating that
it was based on the proposal information. RAI maintains that the
contracting officer thereby falsely represented to the SSO that RAI
would not be able to perform even if discussions were held and RAI
modified its proposal.
This argument is clearly without merit. First, given that the
proposal evaluation process is based on the information in the
proposals, there simply is no reason to believe that the SSO might
misunderstand that the contracting officer's competitive range
recommendation was based on the proposal information; the premise of
RAI's argument therefore is flawed. Moreover, RAI's argument is based
on a selective reading of the contracting officer's competitive range
recommendation. The sentence cited by RAI, in its entirety, reads as
follows:
"The TEP found numerous major weaknesses in the proposal and
indicated that RAI would be likely to have difficulty in
satisfying all the requirements specified in the solicitation."
(Underlining added.)
Further, the contracting officer stated in her recommendation summary
that:
''[t]he deficiencies in RAI's initial proposal indicate that this
firm does not appear to have sufficient understanding of the
effort to perform successfully. The breadth of revisions
required for RAI to become technically acceptable in the criteria
where they scored less than 'adequate' would be tantamount to
rewriting its proposal as detailed above. . . . Without a major
rewrite, RAI's proposal cannot become technically competitive
with that of ILS."
These statements and others in the competitive range determination
clearly conveyed to the SSO that the contracting officer's
recommendation was based on RAI's proposal, not on a belief that RAI
would not be able to perform satisfactorily under any circumstances.
EPA ACQUISITION REGULATION
RAI maintains that the TEP improperly failed to evaluate the proposals
in accordance with the EPA Acquisition Regulation (EPAAR), 48 C.F.R. sec.
1515.608(a)(1) (1995), which requires the TEP to rate each subfactor
on a 5-point scale. RAI asserts that the regulation requires
discussions where 2 points are assigned, and that since RAI's proposal
received at least 2 points for each subfactor, the agency should have
included RAI's proposal in the competitive range for discussion
purposes.
Again, RAI's argument is based on a selective reading of the relevant
language it cites. While EPAAR sec. 1515.608 does state that for a score
of 2 points "[c]larification is required," the language RAI ignors
states that "[f]inal scoring of the element will be made following
limited discussions or full negotiations, if discussions or
negotiations are held with the offeror." (Underlining added.) Thus,
the regulation clearly does not require clarification/discussion of
subfactors receiving a score of 2 unless discussions are otherwise
held with the offeror. As RAI's proposal was excluded from the
competitive range, and therefore was not included in discussions,
clarification of its proposal was not required.
EVALUATION OF RAI'S PROPOSAL
RAI protests that its proposal should not have been eliminated from
the competitive range because the weaknesses cited by the contracting
officer either did not exist or could have been corrected during
discussions.
In reviewing challenges to an agency's competitive range
determination, we will not independently reevaluate the proposal;
rather, we will examine the evaluation to determine whether it was
reasonable and consistent with the RFP's evaluation scheme.
International Resources Corp., B-259992, Apr. 14, 1995, 95-1 CPD para.
200. Agencies properly may eliminate a proposal from the competitive
range where, in order to be acceptable, the proposal would have to be
revised to such an extent that it would be tantamount to submission of
a new proposal. Systems Planning and Analysis, Inc., B-261857.2, Nov.
9, 1995, 95-2 CPD para. 218.
RAI's proposal was eliminated from the competitive range based on
serious perceived deficiencies under the management, personnel, and
technical factors. We find that the evaluation conclusions are
reasonable, and that the number and extent of the weaknesses warranted
eliminating RAI's proposal from the competitive range. We discuss
some of the deficiencies below.
Management Factor
The management factor was comprised of two subfactors, under both of
which RAI's proposal was found to be deficient. Under the first
subfactor, management plan, the TEP evaluated two areas, contract
mobilization/start up plan and management structure. In her
competitive range recommendation, the contracting officer noted that
while the TEP rated RAI overall adequate in each of these areas, it
also listed a number of weaknesses in each area. With respect to
mobilization/start up plan, RAI's proposal was predicated on a 60-day
period of time between the contract award date and the start up date
for performance, during which RAI would obtain office space--the
proposal did not identify office space leasing arrangements--and hire
12 new employees and relocate 2; the proposal indicated that RAI
would consider hiring incumbent staff, but presented no definite plans
to obtain the necessary personnel. The contracting officer therefore
was concerned that, despite its proposal to do so, RAI would be unable
to have at least 80 percent of its staff in place within 30 days after
the effective date of the contract, and 100 percent in place within 45
days after the effective date, as required by the RFP. With respect
to the management structure area, the contracting officer noted that
RAI's proposal failed to identify the chain of command between RAI and
the proposed subcontractor, and did not otherwise provide details
concerning the relationship between RAI and the subcontractor, despite
instructions in the RFP to do so. In addition, RAI failed to specify
leaders for five of six proposed work groups.
RAI argues that the contracting officer improperly ignored the TEP's
findings that its proposal was adequate in these areas. RAI believes
the contracting officer's concerns in the mobilization/start up plan
area were unwarranted in light of its proposal to mobilize all
personnel the day after the contract start up date and to be fully
operational 30 days later. Likewise, with respect to the management
structure area, RAI maintains that it provided clear-cut management
policies and procedures, as well as a clearly defined management
structure at the team level, and that it clearly outlined the
authorities and responsibilities at the team level.
The evaluation was reasonable. First, contrary to RAI's assertion,
the contracting officer did not ignore the findings of the TEP
regarding RAI's proposal in these two areas; she specifically
recognized that the TEP rated RAI's proposal adequate in these areas.
However, she also considered the specific findings of the TEP
regarding RAI's proposal, and the weaknesses the contracting officer
found were the same weaknesses the TEP identified. Moreover,
regarding the specifics of the evaluation, RAI's mere assertion that
the agency should have found its rapid mobilization proposal
sufficient totally ignores the contracting officer's concern in this
area--that RAI would not be able to mobilize promptly because of the
absence from the proposal of detailed hiring and office leasing plans.
Similarly, with respect to the management structure area, while RAI
points to some of the positive points in its proposal, it does not
dispute the TEP's and contracting officer's findings that it did not
provide the details of its subcontractor arrangement as requested by
the solicitation. The agency's concerns clearly were encompassed by
the evaluation areas in question, and are reasonable on their face.
As RAI has not shown otherwise, there is no basis to object to the
evaluation in this area.
Personnel Factor
The personnel factor was comprised of two subfactors, under one of
which, ESAT Key Team Personnel, offerors were to demonstrate the
skills and qualifications of personnel proposed for the key team
positions. The solicitation provided a list of the education and
experience requirements for each position. In her competitive range
determination, the contracting officer viewed as a serious deficiency
the TEP's conclusion that five of RAI's seven key personnel did not
meet the RFP's combined minimum academic and technical experience
requirements. RAI's arguments concerning two of these personnel are
discussed below.
The Senior Organic Analytical Chemist, Supervisor was required to have
a Masters of Science (M.S.) degree in chemistry and at least 6 years
of experience in all facets of organic chemistry. The TEP found that
while RAI's proposed individual had an M.S. in chemistry and 6 years
of experience working in organic chemistry, he did not have experience
in several facets of organic chemistry--including pesticides,
herbicides, dioxin, drinking water, ground water, and sediments other
than ash--that would be relevant to contract performance. The TEP
considered this lack of experience particularly significant because
the supervisor would be the final person to review data and would have
to solve technical problems in all areas as the problems arose.
RAI essentially argues that, since the RFP did not identify the
various facets of organic chemistry in which experience was required,
the finding that the proposed individual does not possess this
experience improperly was based on unstated RFP requirements.
We disagree. First, we see nothing unreasonable in the agency's
expecting experienced offerors to be aware of the various aspects of
organic chemistry relevant to performance of this contract, such that
they did not have to be spelled out in the solicitation. Second, if
RAI did not understand what was encompassed by "all facets" of organic
chemistry, it should have sought amendment of (or protested) the RFP
on this basis prior to the closing time. 4 C.F.R. sec. 21.2(a)(1)
(1996). In any case, while the solicitation did not list all the
facets of organic chemistry, the statement of work did make reference
to several of them; it stated on page A7 that samples referenced in
this task area may consist of, but are not limited to, water, waste
water, soil, sediment, waste, air, and biological matrices. It also
stated (under "Organic Chemistry") that performance could include
"qualitative and quantitative analysis of tetra-through octa-dioxin."
We conclude that RAI was on sufficient notice of the experience
requirements, and that the evaluation of this individual was
reasonable.
Another of the key personnel was a Toxicologist. Although the agency
found that RAI's proposed individual had the requisite degree and
years of experience, it was concerned that she obtained her degree and
most of her experience in China, rather than in the U.S. The TEP also
was concerned that the individual did not have a great deal of
experience dealing with the toxic compound characteristics in the
environmental matrices which would be encountered during performance
of the contract; specifically, the TEP noted that Ms. Lu did not have
a site assessment or leaching study background, that her only dioxin
work had been during her Ph.D thesis, and that she had no field
experience at hazardous waste sites.
RAI asserts that it was unreasonable for the agency to question the
individual's qualifications merely because she obtained her degree and
experience in a foreign country. However, this was not the only basis
for the TEP's concern with the individual's qualifications. We find
nothing unreasonable in the agency's questioning the individual's
qualifications based on her lack of experience in areas encompassed by
the contract, aspects of the evaluation RAI does not contest.
We conclude that the deficiencies identified by the agency are
supported by the record, and that the agency reasonably determined,
based on these deficiencies, that a substantial rewrite of the
proposal would be required before RAI could become eligible for award.
The agency therefore properly eliminated RAI's proposal from the
competitive range.[1]
The protest is denied.
Comptroller General
of the United States
1. In a supplemental protest RAI argued that the agency improperly
failed to notify RAI that it had been eliminated from the competitive
range and that the award had been made to RAO. Since we have found
that RAI was properly eliminated from the competitive range, we do not
reach these issues since they would not affect the award decision.