BNUMBER: B-274390.2
DATE: June 13, 1997
TITLE: Geonex Corporation, B-274390.2, June 13, 1997
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DOCUMENT 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:Geonex Corporation
File: B-274390.2
Date:June 13, 1997
Michael A. Hordell, Esq., and Laura L. Hoffman, Esq., Gadsby & Hannah,
for the
protester.
Devon E. Hewitt, Esq., and Matthew A. Anzaldi, Esq., Shaw, Pittman,
Potts &
Trowbridge, for Greenhorne & O'Mara, Inc., the intervenor.
James L. Weiner, Esq., and Justin P. Patterson, Esq., Department of
the Interior, for
the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protester was not prejudiced by the agency's waiver of a requirement
in an
architect-engineer competition that each vendor's participants in a
photointerpretation live test demonstration--one of the evaluation
criteria--have been
employed by the vendor prior to a specific date, where the protester
would not be
the most highly rated vendor, even if it achieved a perfect score on
the
demonstration.
DECISION
Geonex Corporation protests the award of a contract for
architect-engineer (A-E)
services to Greenhorne & O'Mara, Incorporated (G&O), by the Fish and
Wildlife
Service, Department of the Interior.
We deny the protest.
The agency placed an announcement in the Commerce Business Daily on
May 16,
1995, seeking four "units" of services in support of the agency's
effort to classify
and map the nation's wetlands. The synopsis requested that interested
firms submit
Standard Forms (SF) 254 and 255 by June 16, 1995.[1] Each unit was
treated as a separate procurement. This protest concerns the
selection of a vendor for unit
one--photointerpretation services.
The agency received the requisite forms from four firms, and
determined that three
firms, including Geonex and G&O, were most qualified to perform the
services. The
agency provided each of these firms with a "statement of work" which
further
described the agency's requirements, "clarification questions"
concerning certain
aspects of the vendors' responses, and sample task orders to be
completed by the
vendors. The agency also scheduled site visits to the vendors'
facilities, as well as
photointerpretation live test demonstrations and oral presentations by
the vendors.
After the site visits, live test demonstrations, and oral
presentations were
conducted, and the vendors' responses to the sample task orders and
questions
asked by the agency during its visits to the vendors' facilities were
received, the
agency rated the vendors under an evaluation scheme consisting of 18
evaluation
criteria and 38 subcriteria. G&O was rated as the most highly
qualified firm with
[DELETED] out of 3,910 points. Geonex received the next highest
technical ranking of [DELETED] points, and the third offeror received
[DELETED] points. Accordingly, the agency selected G&O for
negotiations, and on August 12, 1996, after the completion of price
negotiations, awarded G&O a contract for the photointerpretation
services.
On August 30, 1996, Geonex, the incumbent contractor for the
photointerpretation
services, protested the award of the contract to G&O. In that
protest, Geonex
challenged numerous aspects of the agency's evaluation and selection
of G&O to
perform the photointerpretation services, including the conduct and
scoring of the
photointerpretation live test demonstrations. The agency ultimately
entered into a
settlement agreement with Geonex, in which, among other things, the
agency
agreed to disregard the results of the sample task responses and
photointerpretation
live test demonstration, and to obtain new sample task responses and
"[r]e-do all
aspects of the photointerpretation live test demonstration." The
agency also agreed
that the total number of points allocated to the relevant evaluation
criteria for the
photointerpretation live test demonstration (1,200) and sample task
responses (500)
would remain the same. The agency further agreed that "[t]he
photointerpretation
live test demonstration will be limited to individuals listed in the
parties' SF 254/255
forms originally submitted or in the employ of Geonex and G&O on March
1, 1996."
Based on this agreement, Geonex withdrew its protest to our Office on
November 16, 1996.
By letter dated January 15, 1997, the agency informed Geonex and G&O
of the
schedules for their respective photointerpretation live test
demonstrations.[2] The letter included a list of materials that the
agency would provide for the
photointerpretation live test demonstration, and stated that the
photointerpreters
would "be required to identify, delineate, and classify wetlands
within a specified
work area." The letter added that the photointerpreters would "be
required to
answer several fill-in-the-blank questions about a specific work area
and several
essay questions about [the agency's] classification system," and that
"[t]he essay
portion of the demonstration would be conducted as a closed-book
test." With
regard to which vendor representatives could attend the
photointerpretation live
test demonstration, the letter specified:
"Attendance will be limited to two photointerpreters and one
other
person for each vendor. All vendor representatives in attendance
shall
be amongst those who are proposed by the vendor to work on the
contract. ALTERNATES WILL AUTOMATICALLY BE ELIMINATED."
The agency issued a second letter concerning the photointerpretation
live test
demonstration "to respond to questions received as a result of the
January 15, 1997
letter." With regard to the photointerpretation live test
demonstration, the second
letter stated:
"Regarding the Live Test:
1. What is the total duration of the live test?
Answer
Four hours for the photointerpretation portion and an
additional two
hours to complete the fill-in-the-blank questions and essay
questions (one
hour for each). There will be a one hour break following the
photointerpretation portion prior to the two hour written test
portion.
2. The instructions indicate that "All vendor
representatives in attendance
shall be amongst those who are proposed by the vendor to
work on
the contract." Please define the government's meaning of
the word
'proposed' versus 'alternates' within the context of
these written
instructions?
Answer
The photointerpretation Live Test Demonstration will be
limited to
individuals listed in the [parties'] SF 254/255 forms as
originally
submitted or in the employment of your firm on March 1, 1996.
An
alternate is a person who does not meet these criteria."
Geonex's and G&O's photointerpretation live test demonstrations were
conducted at
the agency's facility on February 4th and 5th, respectively. Each
vendor's
demonstration was attended by two photointerpreters and its proposed
project
manager.
The results of the live test demonstration were evaluated by the
cognizant technical
evaluation team (TET). Geonex's answers received [DELETED] out of 700
points with regard to the identification, delineation, and
classification of wetlands, and [DELETED] out of 500 points with
regard to the fill-in-the-blank and essay questions, for a total
photointerpretation live test demonstration score of [DELETED] out of
1,200 points. This score was added to Geonex's score of [DELETED]
points received under the other 17 evaluation criteria, for a total
score of [DELETED] out of a possible 3,910 points. G&O's answers
received [DELETED] points with regard to the identification,
delineation, and classification of wetlands, and [DELETED] points with
regard to the fill-in-the-blank and essay questions. G&O's total of
[DELETED] points for the photointerpretation live test demonstration
was added to its score of [DELETED] points received under the other
evaluation criteria, for a total score of [DELETED] points.
Because G&O received the highest technical score, the agency affirmed
its prior
selection of G&O, rescinded the stop work order it had issued in
response to
Geonex's initial protest, and informed G&O that it could proceed with
its contract.
Geonex protests the agency's conduct and evaluation of the
photointerpretation live
test demonstration. Specifically, Geonex argues that the agency
improperly allowed
G&O's proposed project manager, who was not listed in G&O's SF 254/255
forms as
originally submitted or in the employ of G&O as of March 1, 1996, to
attend and
participate in the photointerpretation live test demonstration.
The agency responds that it believes the conduct of the test was
consistent with the
photointerpretation live test demonstration instructions implementing
the parties'
settlement agreement, and that in any case the protester was not
prejudiced by
G&O's project manager's participation in the demonstration.
Competitive prejudice is an essential element of every viable protest.
Diverco, Inc., B-259734, Apr. 21, 1995, 95-1 CPD para. 209 at 3. Our
Office will not sustain a protest
unless the protester demonstrates a reasonable possibility that it was
prejudiced by
the agency's actions, that is, unless the protester demonstrates that,
but for the
agency's actions, it would have had a substantial chance of receiving
the award.
McDonald Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3. See
Statistica, Inc. v.
Christopher, 102 F.3d. 1577, 1581 (Fed. Cir. 1996).
Here, the record evidences that the proposed G&O project manager's
participation
in the live test demonstration violated the clear instructions that
prohibited the use
of individuals employed on or after March 1, 1996, and that his
participation may
well have enhanced G&O's score. In other words, while the agency does
not
characterize it as such, it is apparent that the agency waived a
solicitation
requirement to the possible advantage of G&O. Nevertheless, we find
that Geonex
was not prejudiced by the agency's waiver of the stated demonstration
instructions,
given the significant difference between the vendors' final scores.
In cases such as this, where the protester argues that an agency
waived a certain
requirement, prejudice does not mean that, had the agency failed to
waive the
requirement, the awardee would have been unsuccessful. Brown & Root,
Inc. and
Perini Corp., a joint venture, B-270505.2; B-270505.3, Sept. 12, 1996,
96-2 CPD para. 143
at 11. Rather, the pertinent question is whether the protester would
have submitted
a different offer that would have had a reasonable possibility of
being selected for
award had it known that the requirement would be waived. Id.
Geonex states that, had it known that the agency would not enforce the
limitation
as to which vendor representatives could attend the live test
demonstration, it
would have, to some extent, selected other individuals to perform the
test, which
presumably would enable it to achieve a higher score. However, even
if Geonex
achieved a perfect 1,200 score for the photointerpretation live test
demonstration,
its total score of [DELETED] points ([DELETED] for the other criteria
plus 1,200) would be less than G&O's total score ([DELETED] points);
thus, Geonex was not prejudiced by the agency's waiver. See Square
537 Assocs. Ltd. Partnership, B-249403.2, Apr. 21, 1994, 94-1 CPD para.
272 at 6-7.
Geonex also argues that the agency's and G&O's actions here breached
the
settlement agreement of its prior protest, such that our Office should
recommend
that the agency "disqualify G&O from this procurement" or "that G&O be
disqualified from evaluation criterion #18 (photointerpretation live
test
demonstration)" in order to protect the "integrity of the procurement
system."
Our bid protest jurisdiction is limited to deciding protests
"concerning an alleged
violation of a procurement statute or regulation." 31 U.S.C.A. sec. 3552
(West Supp.
1997). Thus, we will not consider a protest concerning the
enforceability of a
settlement agreement unless it alleges that the agreement, if followed
or breached,
would result in a prejudicial violation of procurement law or
regulation. American
Mktg. Assocs., Inc.--Recon., B-274454.4, May 14, 1997, 97-1 CPD para. 183.
As discussed above, there was no prejudice here, even assuming the
settlement
agreement was breached with respect to the participants in the
photointerpretation
live test demonstration. Moreover, we find no basis to eliminate G&O
from the
competition, given that G&O's project manager readily identified
himself to the
agency representatives upon arriving at the agency's facility for the
live test
demonstration as a G&O employee who had not been employed by G&O prior
to
March 1, 1996, and the agency expressly allowed him to participate.[3]
The protest is denied.
Comptroller General
of the United States
1. SF 254, Architect-Engineer and Related Services Questionnaire, is
the statement of qualifications submitted annually by firms wishing to
be considered for A-E contracts. SF 255, Architect-Engineer and
Related Services for Specific Project, is a supplement to SF 254 and
requires firms to furnish job-specific experience. See Geographic
Resource Solutions, B-260402, June 19, 1995, 95-1 CPD para. 278 at 2.
2. This protest does not concern the evaluation of the new sample task
responses.
3. Our Office has recommended that a vendor be barred from
participating in a procurement only in instances where the vendor has
committed a particularly egregious act that adversely affects the
integrity of the competitive system, such as making a material
misrepresentation to the agency during the conduct of the procurement,
see Informatics, Inc., 57 Comp. Gen. 218, 225 (1978), 78-1 CPD para. 53 at
13, and has upheld an agency's determination to disqualify a vendor
from a competition where, for example, a vendor attempted to
improperly obtain a competitor's proprietary information, and the
agency had concluded that the protection of the integrity of the
procurement system mandated the disqualification of the offending
vendor. See Compliance Corp., B-239252, Aug. 15, 1990, 90-2 CPD para. 126
at 7, recon. denied, B-239252.3, Nov. 28, 1990, 90-2 CPD para. 435. The
protester has not shown, and the record does not evidence, that G&O's
actions were such that the protection of the integrity of the
procurement mandates G&O's disqualification from this competition.