BNUMBER: B-274698.2; B-274698.3
DATE: January 23, 1997
TITLE: PRC, Inc.
**********************************************************************
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:PRC, Inc.
File: B-274698.2; B-274698.3
Date:January 23, 1997
L. James D'Agostino, Esq., Timothy B. Harris, Esq., and William B.
Fisher, Esq., Wickwire Gavin, for the protester.
Stuart Young, Esq., DynCorp for TESCO, an intervenor.
Vera Meza, Esq., and Phillip A. Weaver, Esq., the Department of the
Army, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
1. Award to lower-rated, lower-cost offeror is unobjectionable where,
although the solicitation emphasized technical factors over cost, the
agency reasonably determined that there was no substantive difference
between the proposals that warranted the additional cost of the
higher-rated proposal.
2. Protest alleging unfair competitive advantage accruing to an
offeror as a result of employing the retired commanding officer of an
organization which included the procuring activity is denied where the
record does not show that this individual accessed competitively
useful inside information.
DECISION
PRC, Inc. protests an award to TESCO, a joint venture,[1] under
request for proposals (RFP) No. DATM01-95-R-0019, issued by the U.S.
Army Materiel Command (AMC), Operational Test and Evaluation Command
(OPTEC) Contracting Activity, for test support services required by
the Test and Evaluation Command (TEXCOM), Fort Hood, Texas. PRC
protests the reasonableness of the evaluation and source selection
decision, and that TESCO obtained an unfair competitive advantage
through its employment of an Army procurement official.
We deny the protest.
BACKGROUND
The RFP, issued on November 9, 1995, contemplated the award of a
cost-plus-award-fee contract for 1 year with 3 option years. The RFP
stated a best value basis for award with the following evaluation
factors listed in descending order of importance: technical,
management, past performance, and cost. The technical and management
factors, which were to be rated both adjectivally and with numerical
scores, contained numerous stated subfactors and sub-subfactors with
their relative importance. Past performance was to be rated
adjectivally and with a performance risk assessment. Cost was not to
be point scored, but was to be evaluated by a cost realism analysis
and a most probable cost (MPC) estimation.
The agency received proposals from three offerors, including PRC and
TESCO--the incumbent contractor--by the February 4, 1996, due date.
The proposals were evaluated, discussions conducted with all three
offerors, and best and final offers (BAFO) requested. All three
offerors submitted BAFOs which the agency evaluated as follows:
PRC TESCO Offeror A
Technical 93--Excellent 92--Excellent 89--Good
Management 87--Good 83--Good 85--Good
Combined 90.6--Excellent 88.4--Good 87.4--Good
Past PerformanceSuperior
Low Risk Good
Low Risk Good
Low Risk
Proposed Cost $67,881,347 $66,455,607 $66,310,264
Total MPC $69,706,454 $67,264,257 $67,289,092
The following numerical and adjectival rating scale was stated in the
source selection plan (SSP), which was not disclosed to offerors prior
to these protests: excellent 90-100; good 80-89; marginal 70-79; and
unacceptable 1-69.[2]
There were separate evaluation committees for each factor. The
evaluators on both the technical committee and management committee
individually assigned adjectival ratings to each proposal for every
evaluation criterion beginning at the sub-subfactor level and working
up through the subfactors to the overall technical or management
factor rating. They followed the same process for assigning numeric
scores, except they started assigning point scores at the subfactor
level. Additionally, each evaluator provided narrative comments
describing any advantages, disadvantages, or deficiencies which that
evaluator determined to exist in a proposal.[3]
The evaluators within each committee then met as a group and, using
this same general format, assigned consensus ratings, scores, and
narrative comments to each proposal. The consensus narrative comments
for each committee specifically stated the benefit or impact to the
government associated with each evaluated advantage or disadvantage
and, where a specific advantage was considered to be an innovation,
the narrative so stated.
These consensus ratings, scores, and narratives, along with the
results of the past performance and cost evaluations, were submitted
to the source selection evaluation board (SSEB), which included the
chairmen of each evaluation committee. The SSEB Chairman prepared the
final evaluation report. The report was submitted to the source
selection advisory council (SSAC) and then to the source selection
authority (SSA).
The final evaluation report essentially summarized with some revisions
the consensus evaluations of the committees. The report described the
evaluation findings for each subfactor under the technical and
management factors for each proposal and separately described the
advantages/benefits which the committee consensuses had identified,
particularly those identified as innovations. The report identified
two innovations each for PRC's and TESCO's proposals. The report then
compared the evaluation findings for all three proposals and
recommended TESCO's proposal for award. Although the report
acknowledged that PRC received the highest evaluation ratings, it
stated that none of PRC's "significant innovations, methodologies or
advantages" warranted the additional cost of that proposal. The
report further compared the proposals of TESCO and the third offeror
and determined that TESCO not only had a higher rating for
approximately the same price, but also offered innovations of greater
value than this third proposal.
The SSA reviewed the final evaluation report and accepted its
recommendation. The SSA's source selection decision document stated
the following rationale for not selecting PRC:
"PRC had the highest rated proposal in all areas and highest
overall scores. However, there was nothing so exceptional in
their proposal that warranted paying $2.4 [million] in additional
costs. Therefore, PRC, despite its technical merit, does not
represent the best value to the government."
The SSA's decision document then compared the proposals of TESCO and
the third offeror, particularly their evaluation ratings and
identified innovations, and stated that TESCO's proposal represented
the best value to the government. On September 27, the agency awarded
the contract to TESCO. This protest followed.
PRC's protest allegations are numerous and fall into two general
categories. The first category involves allegations that the
evaluations and source selection decision were unreasonable and
improper. The second category concerns the allegation that TESCO
gained an unfair competitive advantage as a result of employing the
retired commanding officer of OPTEC.
PROPOSAL EVALUATION ISSUES
PRC first contends that the evaluation scores on which the source
selection was based were not supported by adequate documentation.
In reviewing an agency's evaluation of proposals and source selection
decision, our review is confined to a determination of whether the
agency acted reasonably and consistent with the stated evaluation
factors. Main Bldg. Maintenance, Inc., B-260945.4, Sept. 29, 1995,
95-2 CPD para. 214. An agency's evaluation of proposals and source
selection decision should be documented in sufficient detail to allow
for the review of the merits of a protest. Southwest Marine, Inc.;
American Sys. Eng'g Corp., B-265865.3; B-265865.4, Jan. 23, 1996, 96-1
CPD para. 56. An agency which fails to adequately document its evaluation
of proposals or source selection decision bears the risk that its
determinations will be considered unsupported and, absent such
support, our Office may be unable to determine whether the agency had
a reasonable basis for its determinations. Engineering and
Computation, Inc., B-261658, Oct. 16, 1995, 95-2 CPD para. 176; U.S.
Defense Sys., Inc., B-245563, Jan. 17, 1992, 92-1 CPD para. 89; American
President Lines, Ltd., B-236834.3, July 20, 1990, 90-2 CPD para. 53. That
is not to say to that our Office, in determining the reasonableness of
an agency's evaluation and award decision, limits its review to the
contemporaneous evaluation and source selection documentation.
Rather, we will consider, in addition to the contemporaneous
documentation, all information provided to our Office for
consideration during the protest, including the parties' arguments and
explanations and testimony elicited at a hearing. Southwest Marine,
Inc.; American Sys. Eng'g Corp., supra. In considering the entire
record, we accord greater weight to contemporaneous evaluation and
source selection material than to the parties' later explanations,
arguments, and testimony. Id.; DynCorp, 71 Comp. Gen. 129 (1991),
91-2 CPD para. 575.
Here, the evaluators' worksheets provided numerical scores for the
technical and management factors and subfactors, as well as adjectival
ratings for the factors, subfactors, and sub-subfactors. Although
some narrative comments were provided for the sub-subfactor level to
explain the bases for the ratings assigned, many of the sub-subfactors
which received ratings in the good range had no supporting narrative
comments. The chairmen of the management and technical committees
testified that this meant that the proposal was at least minimally
acceptable under the respective criterion with no notable advantages
or disadvantages. Hearing Transcript (Tr.) at 21-22, 63, 65, 245-246.
This explanation is consistent with the definitions for ratings stated
in the SSP and the evaluator workbooks under which a "good" rating
indicated that all minimum requirements were met, a "marginal" rating
indicated that deficiencies were found, and an "excellent" rating
indicated that all requirements were met and that advantages clearly
outweighed disadvantages.[4] In other words, without any narrative
comments noting deficiencies or advantages, a rating of "good"
reasonably evidences that the evaluators determined the proposal to be
at least minimally acceptable.[5] Here, although protester's counsel
had access to all of the proposals and evaluation documentation under
a protective order issued by our Office, PRC has not identified a
single example where a proposal rated "good" without corresponding
comments was not at least minimally acceptable, and thus it has not
shown that the ratings assigned were not warranted.
There are also evaluation criteria stated in the RFP under the
technical sub-subfactors, for which the technical committee did not
provide adjectival ratings. PRC alleges that this demonstrates that
these criteria were not evaluated as contemplated by the RFP. The
technical chairman, referencing the SSP, identified these criteria as
technical sub-subfactors or elements of the technical sub-subfactors.
Tr. at 232-243. He stated that although all of these elements were
evaluated, no ratings or scores were assigned, but if notable
advantages or disadvantages were found during the evaluation of these
elements, they were recorded in the evaluators' narrative comments.
Tr. at 241-246. In this case, all of the technical sub-subfactors
with subordinate elements were rated at least "good". Here also, PRC
has not identified any aspects of any proposal which would be
inconsistent with the chairman's explanation of the evaluation and the
corresponding evaluation ratings.
PRC also alleges that the narrative comments only document advantages
and disadvantages, which are respectively defined in the SSP as
elements of a proposal which increase or decease the proposal's value
to the government. PRC thus alleges that the evaluations failed to
consider or document strengths or weaknesses in proposals which might
further differentiate proposals but not necessarily increase or
decrease their value.
The SSP instructs evaluators to document advantages, disadvantages,
and deficiencies in their narrative comments and this is all that the
evaluators addressed in their written comments. Tr. at 66, 109-110,
245-247. Thus, the protester's contention that strengths and
weaknesses not determined to be advantages or disadvantages were not
documented is essentially correct. Tr. at 66-67, 107-111.
Nevertheless, the evaluators did consider all aspects of the proposals
in their evaluations. Tr. at 111-113, 245-247. PRC has not
identified any examples of strengths or weaknesses in a proposal,
which were not documented but reasonably would be considered
significant discriminators between the proposals.
PRC thus has failed to show that the evaluation scores or ratings are
unreasonable as a result of inadequate documentation.
Second, PRC contends that the evaluation was otherwise unreasonable in
numerous respects. For example, PRC alleges that the SSEB chairman, in
the final evaluation report, unreasonably represented the degree of
risks in TESCO's BAFO as evaluated by the management committee. In
this regard, the management committee's consensus narrative summary
stated the following with regard to TESCO's BAFO:
"(1) General Management: . . . The offeror's proposal describes
the use of a 'Leveraged Workforce,' [TSC Information Management
System] TIMS, [DELETED], inclusion of poorly or unsubstantiated
claims of innovation, leading to cost avoidance and personnel
reductions [which] has made it almost impossible to
access/evaluate if the resourcing data is accurate or reasonable.
The ambiguous nature of most of this offeror's proposal makes
difficult reading.
IMPACT: Significant risk of mission accomplishment. The main
theme seems to be: 'Trust me, I've done this before.' But, the
offeror fails to be specific in either methodology or details
pertaining to the required tasks. Methodology is often
contradictory, depending on the section one reads. There is,
throughout the proposal, reliance on a 'yet-to-be' developed
[automated data processing] Base and Management System (TIMS).
Base personnel reductions are tied to it in the out-years. The
lack of clarity makes you wonder what we (TEXCOM) are really
going to get with the overall proposal. There is high risk of
incurring additional government cost by maintaining [DELETED]."
[Emphasis in original.]
The final evaluation report presented to the SSA restated almost
verbatim the concerns quoted above, although it restated the
"significant risk of mission accomplishment" as "a risk to mission
accomplishment" and restated the "high risk of incurring additional"
cost as "a moderate risk of incurring additional cost."
PRC alleges that this altering of the risk by the SSEB Chairman was
improper and unreasonable because it did not accurately reflect the
degree of risk determined by the evaluators, and that this significant
risk in TESCO's proposal, if properly considered, would have indicated
that award should be made based on PRC's higher-rated proposal.
Source selection officials, which includes officials at an
intermediate level, are not bound by the recommendations or evaluation
judgments of lower-level evaluators, even though the working level
evaluators may normally be expected to have the technical expertise
required for such evaluations. Loral Aeronutronic, B-259857.2;
B-259858.2, July 5, 1995, 95-2 CPD para. 213; Benchmark Security, Inc.,
B-247655.2, Feb. 4, 1993, 93-1 CPD para. 133. The judgments of these
officials are governed only by the tests of rationality and
consistency with the stated evaluation criteria. Loral Aeronutronic,
supra; Benchmark Security, Inc., supra.
The chairman of the management committee stated that, in their risk
assessment, the evaluators combined their concerns about TESCO's
leveraged workforce and [DELETED], together with their concerns about
TIMS. The consensus discussion revealed that the evaluators did not
completely understand these elements of the BAFO and became frustrated
with TESCO's presentation of them in its BAFO and this frustration
resulted in the high risk assessment. Tr. 142-147. As the
evaluators' comments were reviewed by higher-level selection officials
in the SSEB and the SSAC, the evaluated risk was not considered as
significant as the management committee had evaluated. Tr. at
268-269, 300-301.
As discussed below, our review indicates that the higher evaluation
officials reasonably based their reevaluation of the risks associated
with these aspects of TESCO's proposal on actual knowledge, and we
cannot say that their downplaying of this risk was unreasonable.
First, TESCO's leveraged workforce concept involves the [DELETED].
TESCO's BAFO refers to the category of personnel identified by the RFP
to be dedicated full-time to provide "base" services common to
supporting the TSC contract as "base personnel." The RFP also
identified a category of personnel to be hired on a temporary basis as
needed to perform specific test services; TESCO's BAFO refers to this
category of personnel as "augmentee personnel." The cost of base
personnel is funded by TEXCOM's base funds, whereas the cost of
augmentee personnel is funded by the specific test funds of the
respective test under which the augmentee personnel are hired. Tr. at
90, 153.
TESCO's BAFO identifies, as a potential problem arising from this
dual-category workforce, the lack of [DELETED]. In response to this
potential problem, TESCO proposed [DELETED]." (Emphasis in
original.)[6]
TESCO's description led the management committee to conclude that
TESCO might be attempting to deceive the agency into believing that
TESCO would give the agency "some free people"--i.e., that the agency
would receive [DELETED] at no cost under the contract--and the
evaluators knew that "there is no free lunch." Tr. at 143, 146.
There was also concern that the [DELETED] would result in the
contractor's "mak[ing] work in order to keep these people on" the
payroll when their test projects were complete, thus increasing the
cost to the government. Tr. at 71-75.
The SSEB downplayed this risk, however, as it was familiar with
TESCO's leveraged workforce concept because TESCO had implemented the
concept under the current contract and it had been working well. Tr.
at 312-316. The SSEB also was aware of strong cost controls in place
which made it almost impossible for contractors to increase costs by
fabricating work to keep idle personnel employed. Tr. at 355-358. We
see nothing improper with this SSEB approach. Evaluators and source
selection officials generally may consider their own past knowledge
and experience with offerors in evaluating proposals and do not always
have to limit their evaluation to the four corners of the proposal.
Coe-Truman Technologies, Inc., B-257480, Sept. 12, 1994, 94-2 CPD para.
136. Moreover, our review of TESCO's BAFO shows that although the
leverage workforce concept was difficult to understand, it clearly
indicates that TESCO was not proposing free personnel. Accordingly,
the SEEB could reasonably conclude that the risk associated with
TESCO's leveraged workforce plan was not as significant as it was
initially evaluated.
With regard to the other major concern of the management committee,
TESCO's BAFO also proposed, as an option, TIMS, an automated
management information system that would integrate the various
existing databases and permit both contractor and government personnel
to retrieve information using this integrated computerized system.
Currently, the contractor must retrieve such information directly from
contractor-maintained databases and provide it to agency personnel on
a periodic basis in the form of reports. Tr. at 131-136. TESCO's
BAFO included a detailed discussion of the proposed architecture and
implementation schedule for TIMS. TIMS would be based on integrating
commercial-off-the-shelf (COTS) and existing database software and
tailoring it to the specific needs of TEXCOM. The proposed system was
divided into 10 modules which would share a common database and could
be developed and implemented separately. The proposed implementation
plan was 11 months from the contract start date. Since TESCO's BAFO
emphasized the use of TIMS and cited efficiencies that would result
from its use, the evaluators were concerned that TIMS was not yet
developed, that a risk existed that TIMS could not be developed as
quickly as proposed, and that the BAFO did not provide much
information about contract performance in the event TIMS were not
developed on time.
However, here too the SSEB members (and SSA) were somewhat familiar
with the TIMS automation system, as the COTS software had been
demonstrated for the agency at a presentation given by a vendor upon
the request of TESCO under the incumbent contract. Since the system
was highly dependent on COTS components, it did not have the
significant development risks of an entirely undeveloped system. Tr.
at 268-270, 279-288, 291-293, 303-306. Also, TESCO's BAFO's
explanation of TIMS stated that the system was based on tailoring COTS
software to the needs of TEXCOM, that this design was complete on five
of the ten modules proposed, that a pilot module had been implemented,
and that a prototype of a second module had been completed--this
evidences that there is not much additional development needed and
thus no significant development risk.[7]
Thus, we find that the reduction of the degree of risks in the final
evaluation report was not unreasonable because this adjustment was
based upon actual experience and a reasonable understanding of TESCO's
BAFO. Moreover, although the degree of risks was reduced in this
report, the original basis for the risks was fully stated in the
report and the original ratings and scores of the evaluators remained
unchanged; therefore, the report did not present misleading
information to the SSA.
PRC next alleges that the rating of "good" given to TESCO for the
management sub-subfactor, organization and staffing, was unreasonably
high because the evaluators' narrative comments noted only
disadvantages under this sub-subfactor. However, as discussed above,
under the rating scale used here, some deficiencies must exist for a
proposal to receive a "marginal" rating.[8] Since the evaluators did
not find any deficiencies under this sub-subfactor, their ratings
should not have been any lower than "good" on the SSP scale.[9]
Moreover, this sub-subfactor falls under the resourcing subfactor,
which also received a rating of "good", as well as a numerical score
of 80--the lowest possible score for a "good" rating. Since the
management committee found no other disadvantages, one advantage, and
no deficiencies under the other sub-subfactors of this subfactor, we
think that the relatively low subfactor score reasonably reflects the
disadvantages evaluated in TESCO's BAFO under the sub-subfactor.
PRC also alleges that the evaluation of TESCO's proposal concerning
the
Mobile Army Instrumentation Suite (MAIS) was unreasonable.
Specifically, PRC states that the original technical committee found a
deficiency in TESCO's MAIS staffing in its initial proposal,[10] and
alleges that the management committee's evaluation of TESCO's BAFO
indicates that the deficiency remains and that TESCO's rating should
be lower. We disagree.
MAIS is a significant instrumentation system developed by another
contractor. The MAIS development contract includes support services
that, upon expiration of the MAIS contract, will be transferred to
this contract. In evaluating MAIS, the evaluators determined whether
an offeror clearly proposed to handle it under the same approach
proposed for other support services. The overall evaluation for a
proposal was adjusted only to the extent this portion of the proposal
enhanced or degraded the overall proposal. Tr. at 248-260, 387-398.
The technical committee's evaluation of TESCO's initial proposal
considered that the proposed use of [DELETED] personnel to provide
MAIS support services was inadequate and that this was a deficiency.
TESCO was advised of this deficiency during discussions and increased
its MAIS staffing to [DELETED] personnel [DELETED].
The management committee's evaluation of MAIS in TESCO's BAFO
identified as a disadvantage TESCO's failure to identify all of the
[DELETED] positions proposed in the job descriptions, or any of these
positions in the skills cross-reference chart, both of which were part
of the management and technical proposals. The management committee
stated:
". . . These dichotomies made it impossible to evaluate the
proposed staffing for MAIS.
IMPACT: There is a risk to the Government that MAIS will not
be adequately staffed. In any case, the Management Committee is
not technically competent to make a determination as to the
correctness of the manning and defers that determination to the
Technical Committee." [Emphasis in original.]
Our review of the technical proposal in TESCO's BAFO shows that it
contains a detailed explanation of the proposed MAIS staffing. The
explanation specifically identified the staff positions; these staff
positions were included in the job descriptions and the skills
cross-reference charts. While it is true that the MAIS staffing is
more difficult to follow in the management proposal, the technical
proposal's explanation was specifically referenced in the management
proposal. The management and technical committees thus had sufficient
information upon which to determine the adequacy of TESCO's proposed
MAIS staffing. The technical committee, to which the management
committee deferred, did not identify a deficiency in staffing in its
consensus evaluation.[11] The final evaluation report, although it
stated the management committee's concern, did not identify any
deficiencies in TESCO's proposal and the protester has not shown this
to be unreasonable based on TESCO's proposal.
In sum, PRC has not shown that the evaluation of proposals was
unreasonable or unsupported.
SOURCE SELECTION DECISION ISSUES
PRC alleges that the SSA's selection decision is unreasonable
essentially because it is a superficial analysis that does not apply
the relative weight of the evaluation factors stated in the RFP. PRC
specifically complains that the SSA did not give adequate
consideration to the fact that PRC's BAFO was higher rated than
TESCO's, but placed too much importance on cost, the least weighted
evaluation factor, in selecting TESCO.
In a negotiated procurement with a best value evaluation plan, point
scores and adjectival ratings are only guides to assist contracting
agencies in evaluating proposals; they do not mandate automatic
selection of a particular proposal. Grey Advertising, Inc., 55 Comp.
Gen. 1111 (1976), 76-1 CPD para. 325; Harris Corp.; PRC, Inc., B-247440.5;
B-247440.6, Aug. 13, 1992, 92-2 CPD para. 171. Source selection officials
have broad discretion in determining the manner and extent to which
they will make use of the technical and cost evaluation results
subject only to the tests of rationality and consistency with the
evaluation criteria. Grey Advertising, Inc., supra; A & W Maintenance
Servs., Inc.--Recon., B-255711.2, Jan. 17, 1995, 95-1 CPD para. 24. An
agency properly may award to a lower rated, lower cost offeror, even
if cost is the least important evaluation factor, if it reasonably
determines that award to the higher cost offeror is not justified
given the level of technical competence available at the lower cost.
Calspan Corp., B-255268, Feb. 22, 1994, 94-1 CPD para. 136. Even where a
source selection official does not specifically discuss the
cost/technical tradeoff in the source selection decision, we will not
object if the tradeoff is reasonable based on the record before our
Office. Lloyd-Lamont Design, Inc., B-270090.3, Feb. 13, 1996, 96-1
CPD para. 71.
Here, although the SSA's tradeoff analysis between PRC's and TESCO's
BAFOs was minimally documented, the basis for his selection is
reasonable and consistent with the RFP evaluation scheme. The SSA
acknowledged that PRC's BAFO received the highest ratings in all
areas, but determined that neither PRC's proposal's overall
superiority in the technical, management and past performance areas,
nor any other particular advantage in PRC's proposal, warranted paying
the associated additional cost. We find no evidence in the record
that belies the reasonableness of the SSA's judgment in this regard.
For example, under the technical factor, the most important factor,
both BAFOs were rated "excellent" with only one point separating them.
Under the next factor, management, both BAFO's received the same
"good" ratings and the difference in point scores, although larger
than under the technical factor, appears, as discussed above, to arise
from the evaluators having difficulty in understanding a few elements
of TESCO's proposal, as opposed to their identifying any substantive
weakness in these elements.[12] Under past performance, where PRC was
rated "superior" on all the subfactors, TESCO was rated "superior" on
technical/quality performance and "good" in every other area, and both
offerors were evaluated as having low performance risk.
In attacking the source selection, PRC essentially asserts that, based
upon comments of the evaluators (discussed above), TESCO's BAFO should
have been rated lower than it actually was. However, as discussed
above, the evaluators' comments referenced by PRC were not indicative
of any major weaknesses in TESCO's capabilities and proposed
management and technical approach that demonstrated that TESCO's BAFO
was significantly inferior to PRC's; indeed, in some cases, the
evaluators' negative comments regarding TESCO's proposal were
overstated and reasonably modified by higher level officials. PRC
does not identify any other significant technical or management
differences not considered above or in the evaluation to discriminate
between these BAFOs, nor does it identify any particular strengths,
advantages, or innovations in PRC's proposal that would justify the
cost premium in making award to PRC.
In short, we think the record establishes that the SAA viewed PRC's
technical superiority as minimal and therefore not worth the $2.4
evaluated cost difference between the PRC and TESCO proposals. Under
these circumstances, we find nothing improper in the SSA selection of
the lower cost, slightly lower-rated proposal, notwithstanding the
lesser weight of cost under the RFP evaluation scheme. See Calspan
Corp., supra.
PRC's claims that the SSA's source selection decision placed undue
weight on the evaluated innovations in TESCO's BAFO. However, the
record indicates that the SSA only considered these innovations in his
tradeoff analysis between the BAFOs of TESCO and the third offeror
after he had determined that PRC's BAFO proposed nothing in excess of
TESCO's to offset the higher cost. Tr. at 370-371. There is thus no
basis for finding that undue consideration was given to TESCO's
innovations.[13]
PRC also claims that the SSA improperly relied on a dissenting opinion
of a technical evaluator to reduce the significance of PRC's higher
technical score. This contention has no merit. The record confirms
that one technical evaluator could not agree to the consensus
evaluation of PRC's BAFO and filed an opinion for the record opposing
the high consensus rating and score given to PRC's BAFO; the opinion
stated that the BAFO only warranted a technical rating of "good" and a
score of 89. The SSA made his initial selection of TESCO's BAFO over
PRC's based on the consensus technical rating/score. When he was
briefed on the dissenting opinion and saw that, if valid, it would
only support lowering PRC's score, he concluded that it had no effect
on the decision; the SSA "did not concern [himself] with the
dissenting opinion." Tr. at 369-370, 378-381.
OTHER EVALUATION/DISCUSSIONS ISSUES
PRC raises other sundry issues concerning evaluations or discussions,
none of which provides a basis to sustain its protest. Specifically,
PRC alleges that its BAFO's MPC was incorrectly calculated.[14]
Although we believe PRC's contentions in this regard lack merit, the
SSA, subsequent to this protest, issued a sworn statement explaining
that, even disregarding the MPC evaluation, there was no substantive
difference between proposals that would warrant award to PRC,
considering the somewhat smaller but still significant difference in
proposed costs reflected in the BAFOs. This statement was not
contradicted in the SSA's hearing testimony and has not been otherwise
shown by PRC to be unreasonable or inconsistent with the RFP. Thus,
the alleged errors in the MPC evaluation, even if assumed to exist,
did not prejudice PRC.
Another example is PRC's allegation that the agency did not conduct
meaningful discussions in that it did not advise PRC that it failed to
propose a lead mechanic. The record shows that this was only a minor
issue in PRC's evaluation; it was not a deficiency and its effect on
PRC's evaluation, if any, was negligible. This is not sufficient
evidence to show that discussions were not meaningful. See Stone &
Webster Eng'g Corp., B-255286.2, Apr. 12, 1994, 94-1 CPD para. 306.
UNFAIR COMPETITIVE ADVANTAGE
PRC alleges that TESCO received an unfair competitive advantage in
this competition by means of DynCorp's employing the former commanding
officer of OPTEC, Major General (Retired) Robert B. Rosenkranz, to
help prepare TESCO's proposal.
OPTEC, which is headquartered in Washington, D.C., is divided into two
major supporting commands: TEXCOM, located in Fort Hood, Texas, and
the Operation Evaluation Command, located in Washington, D.C. Tr. at
423-424. Most of the contracting activities for OPTEC, including this
procurement, are performed by the OPTEC Contracting Activity (OCA),
which is located at Fort Hood with TEXCOM. OCA is under a split
command: While the head of OCA reported on staff supervision issues
directly to the General's chief of staff, OCA's contracting activities
are supervised by AMC's Test and Evaluation Command in Aberdeen
Proving Ground, Maryland. Tr. at 426-429.
General Rosenkranz was assigned to the OPTEC command in 1992. Tr. at
429-430. In an internal memorandum dated January 6, 1995, General
Rosenkranz advised Army officials that he "may possibly negotiate
employment with [DynCorp]" and that he was therefore disqualified from
"participation in any official matter that will have a direct and
predictable effect on the financial interests of [DynCorp]." On March
8, General Rosenkranz submitted to the Army Standards of Conduct
Office a request for an ethics opinion advising him of any
post-government employment restrictions which would apply to him.
This request included an ethics questionnaire completed by the General
which disclosed that he was seeking employment with DynCorp, the
DynCorp official with whom he had contact, his proposed job
responsibilities at DynCorp, and information about his participation
in procurements over the previous 2 years as a government employee.
By letter of March 16 to General Rosenkranz, the ethics attorney
stated that he had concluded that the General was not a "procurement
official" under the Office of Federal Procurement Policy (OFPP) Act,
41 U.S.C. sec. 423 (1994), and was thus not subject to the applicable
post-employment restrictions.[15] The letter identified other
post-employment restrictions that were applicable under other
statutes.
General Rosenkranz's employment with DynCorp began in July 1995. As
part of his job responsibilities at DynCorp, he participated in the
preparation of TESCO's proposal. Tr. at 491-496.
The protester's allegations concern procurement-related information
which was not disclosed to the ethics attorney at the time he issued
his opinion finding that General Rosenkranz was not a procurement
official. PRC essentially asserts that General Rosenkranz was in fact
a procurement official for this procurement while he was serving as
commanding officer for OPTEC and/or that he violated various
post-government employment restrictions. PRC also alleges that
General Rosenkranz had access to source selection sensitive
information pertaining to this procurement and/or proprietary
information of DynCorp's competitors, and that he or other TESCO
personnel used such information in the preparation of TESCO's
proposal. Based on these allegations, PRC contends that TESCO had an
unfair competitive advantage under this procurement and must be found
ineligible for award.
Contracting agencies are to avoid any conflict of interest or even the
appearance of a conflict of interest in government-contractor
relationships. FAR sec. 3.101-1; Guardian Technologies Int'l, B-270213
et al., Feb. 20, 1996, 96-1 CPD para. 104. A contracting officer may
protect the integrity of the procurement system by disqualifying an
offeror from the competition where the firm may have obtained an
unfair competitive advantage, even if no actual impropriety can be
shown, so long as the determination is based on facts and not mere
innuendo or suspicion. NKF Eng'g, Inc., 65 Comp. Gen. 104 (1985),
85-2 CPD para. 638; Holmes & Narver Servs., Inc./Morrison-Knudson Servs.,
Inc., et al., B-235906; B-235906.2, Oct. 26, 1989, 89-2 CPD para. 379;
Laser Power Technologies, Inc., B-233369; B-233369.2, Mar. 13, 1989,
89-1 CPD para. 267. Our review is to determine whether the agency has a
reasonable basis for its decision to allow an offeror to compete in
the face of an allegation of an apparent conflict of interest. Holmes
& Narver Servs., Inc./Morrison-Knudson Servs., Inc., et al., supra.
The issue of whether an individual violated procurement integrity
standards is not determinative in a protest of an award to that
individual's employer; the question is whether an offeror may have
prepared its proposal with knowledge of inside information, regardless
of whether the information was actually obtained or used, sufficient
to establish a strong likelihood that the offeror gained an unfair
competitive advantage in this procurement. Guardian Technologies
Int'l, supra. To resolve this question, we typically consider all
relevant information, including whether (in cases such as this) the
former government employee had access to competitively useful inside
information, as well as whether the former government employee's
activities with the firm were likely to have resulted in a disclosure
of such information. Physician Corp. of Am., 270698 et al., Apr. 10,
1996, 96-1 CPD para. 198; Guardian Technologies Int'l, supra.
The specific information in the record before us which General
Rosenkranz had reviewed as commanding officer of OPTEC, from which PRC
alleges TESCO would have gained an unfair competitive advantage are:
(1) an undated document entitled "acquisition plan" for this
procurement; (2) a December 15, 1994, letter from TEXCOM, sent through
General Rosenkranz, to Aberdeen nominating an SSA for this
procurement; (3) a March 15, 1995, presentation given by Research
Analysis and Maintenance, Inc. (RAM) (PRC's proposed subcontractor on
this RFP) at OPTEC; and (4) meetings of the Test Integration Working
Group (TIWG). Based on our review, we conclude that none of the
information contained in these documents or meetings would have given
TESCO an unfair competitive advantage on this RFP.
The acquisition plan is a 29-page document with an attached signature
page which included the signature of General Rosenkranz. The
signature page shows that the plan was approved by AMC, and that
General Rosenkranz, as well as officials at TEXCOM and OCA, concurred
in that decision. The December 15 letter nominated a person for the
SSA position; however, this was not the person who ultimately served
as the SSA. The General signed his initials next to his name and
address at the beginning of this letter. The dates corresponding to
the signature and initials indicated that the General signed both of
these documents on December 22.
General Rosenkranz stated that he does not recall seeing either of
these documents prior to being shown them during this protest, and
thus he did not disclose his concurrence on them to the Army ethics
attorney who found he was not a procurement official. Tr. at 445,
450, 457. He stated that the contracting function was not under his
command and that he normally did not receive documents related to the
contract function. Tr. at 428-429, 440-441. He speculated that these
documents were sent to him as a package to show that OCA was acting on
his previous advice that the SSA appointed for procurements should not
always be the director of OCA. Tr. at 457-458. In any event, since
it was not related to his command responsibility, he stated that he
would have paid little attention to these documents. Tr. at 460.
The General's testimony in regard to these documents seems credible.
His description of his responsibilities revealed that a large volume
of paperwork associated with his command function crossed his desk.
Tr. at 438-439, 442-444. His testimony explaining that he did not
recall the documents is thus consistent with this workload.
More importantly, though, the content of these documents could not
have been competitively useful in this competition. The acquisition
plan, although a procurement planning document, was not marked as
source selection material not to be released outside of the agency.
Instead, the document was a general overview of the process which
largely addressed information that would be in the solicitation, such
as a description of the services to be acquired and the applicable
regulatory provisions, contract clauses and standard forms. The only
information of a nature which arguably would be competitively
sensitive is the cost estimate included in the plan. However, this
preliminary estimate varied considerably from the government estimate
ultimately used for the procurement. We fail to see how outdated cost
information could be of value here. Nor does PRC identify anything in
TESCO's BAFO which would support a conclusion that TESCO used this
information.
As for the identity of the person nominated for SSA in the December 15
letter, this information had no competitive value because a different
person actually served as SSA. There is no evidence that the General
was ever notified of the appointment of the ultimate SSA.
The March 15, 1995, presentation by RAM was arranged by PRC. It was
held at OPTEC and the General attended. Tr. at 468-469. However, the
subject matter addressed RAM's modeling and simulation capabilities
and their application to testing and evaluation. Modeling and
simulation was not part of this protested procurement. Nor was it a
part of either TESCO's or PRC's proposal.
The TIWG established the tests that would be performed over a 5-year
period with emphasis on the first 2 years. Tr. at 525-527. General
Rosenkranz was the TIWG chairman. Tr. at 526. He last participated
in the TIWG in May 1995. Tr. at 526. The 5-year test plan in the RFP
was dated March 1995. Thus, General Rosenkranz had access to slightly
more current test information than would an offeror reading the RFP.
He stated that, although the TIWG at his level of command met
approximately every 6 months, the lower levels of the TIWG had to meet
constantly because the test schedule was always changing. Tr. at
525-531.
Initial proposals on this RFP were submitted nearly a year after the
General's last TIWG meeting. Based on the ever-changing test
environment, neither the information at the May TIWG meeting nor the
RFP March test schedule was likely to accurately represent the actual
test requirements. Nor does it appear that any test schedule at any
point in time was likely to remain accurate for long. Under the RFP,
offerors were not expected to anticipate the actual test schedule, but
rather to demonstrate an understanding of the demands of the test
schedule stated in the RFP. Thus, preparing a proposal based on a
test schedule different from that stated in the RFP would have no
advantage; to the contrary, an offeror using a different test schedule
could be evaluated as having a poor understanding of the stated
solicitation requirements.
As indicated, none of the above referenced information has competitive
value. Moreover, General Rosenkranz has testified that he had no
knowledge of any source selection or procurement sensitive information
relating to this procurement. In sum, nothing in the record evidences
that TESCO gained an unfair competitive advantage from employing
General Rosenkranz.[16]
Nevertheless, PRC alleges that an appearance of impropriety exists
here, and this is sufficient to disqualify TESCO from the competition.
We disagree. While the disqualification of an offeror need not be
based on actual impropriety, it must be based on more than mere
innuendo or suspicion. NKF Eng'g, Inc., supra; Holmes & Narver
Servs., Inc./Morrison-Knudson Servs., Inc., et al., supra; Laser Power
Technologies, Inc., supra. Even assuming that TESCO's employment of
the commanding officer of OPTEC and the use of his services in the
preparation of a proposal submitted to one of his prior subcommands
just months after his retirement may raise some suspicion of
impropriety, a person's familiarity with the type of work required
resulting from the person's prior position in the government is not,
by itself, evidence of an unfair competitive advantage. Physician
Corp. of Am., supra. Nothing in the record before us provides factual
evidence about information which could have been conveyed to TESCO to
give it an unfair competitive advantage. Compare Guardian
Technologies Int'l, supra (sufficient evidence of access to
competitively sensitive inside information) with Physician Corp. of
Am., supra (insufficient evidence of access to competitively sensitive
inside information).
The protest is denied.
Comptroller General
of the United States
1. TESCO's joint venture partners are DynCorp, COMARCO, and EWA
Services, Inc. DynCorp is the managing partner.
2. The SSP also stated that past performance would be rated as either
superior, good, adequate, inadequate, or not applicable, and
performance risk would be assessed as either high, moderate, low, or
unknown.
3. No deficiencies were found in any of the BAFOs here.
4. There are some inconsequential variations between the rating
definitions stated in the SSP and the workbooks.
5. To the extent PRC alleges that the rating and scoring scales are
unreasonable or improper, the protest is untimely because the rating
and scoring scales were stated in the SSP, which PRC received as part
of the agency report on October 28, and PRC did not raise this issue
until its December 30 comments on the hearing, long after the 10-day
period for filing protests had expired. Bid Protest Regulations, sec.
21.2(a)(2), 61 Fed. Reg. 39039, 39043 (1996) (to be codified at 4
C.F.R. sec. 21.2(a)(2)).
6.[DELETED]
7. Although the evaluators considered TESCO's proposal of TIMS to be a
risk, they also considered it an innovative approach and evaluated it
as an advantage, assuming it was implemented as proposed. Indeed, the
final evaluation report stated this as one of TESCO's two innovations:
"The innovation of TIMS adds to the overall excellent
concept of what is required. Successful implementation
has the benefit of adding increased productivity and
improved efficiency."
PRC alleges that TESCO received an unfair competitive advantage as the
result of development of TIMS commencing under TESCO's incumbent
contract. The implication in the protester's filings on this issue is
that the agency directed TESCO to develop this system under the
incumbent contract during the competition for the protested contract
with the intention of conveying a competitive advantage upon TESCO.
However, to the extent work on TESCO's management information system
began under the prior contract, there is no evidence to suggest that
it was ordered to give TESCO a competitive advantage or that it is
outside the scope of the incumbent contract. Any advantages which
TESCO may have received by performing under the incumbent contract are
not "unfair" and the agency is not required to eliminate such
advantages of incumbency from the competition. Versar, Inc.,
B-254464.3, Feb. 16, 1994, 94-1 CPD para. 230.
8. The SSP stated that a proposal receiving a "marginal" rating "does
not meet all of the requirements." The technical and management
evaluator workbooks both state that such a proposal "has some
deficiencies."
9. Notwithstanding that one agency witness also stated that TESCO's
proposal should be rated "poor" if only disadvantages were noted, Tr.
at 22, the record otherwise shows the rating for this sub-subfactor
was consistent with the rating plan employed.
10. The original members of the technical committee were replaced
after initial evaluations for reasons unrelated to this protest.
11. Although the technical committee's narrative contained no
documentation of the MAIS evaluation, the technical chairman stated
that the technical committee did evaluate MAIS in TESCO's BAFO,
reached consensus that there were no concerns, and thus did not
prepare any narrative comments. Tr. at 249-250. We note that PRC's
MAIS staffing ranged from [DELETED], depending on the option year, and
thus never exceeded TESCO's proposed MAIS staffing level. Since PRC's
staffing level was not deficient, it is reasonable to conclude that
TESCO's higher proposed staffing level would not be deficient either.
12. The chairman of the management committee characterized the
evaluators as "wrapped around the axle" over their frustration with
TESCO's method of presenting the leveraged workforce concept and TIMS.
The evaluators mixed these points together and allowed it to shape
their overall evaluation of TESCO's BAFO. Tr. at 143-147.
13. To the extent PRC asserts that it was improper to evaluate
innovations, or that identifying each innovation in addition to the
numerical score or adjectival rating constituted double counting of
evaluation criteria, the protest lacks merit. The RFP specifically
identified innovation as an evaluation criterion to be considered in
rating proposals. Also, identification of specific aspects of
proposals which are the basis for the evaluations ratings/scores, such
as the identification of innovations here, is proper in order to
provide source selection officials with a basis in addition to
ratings/scores upon which they may determine whether any meaningful
differences exist between proposals. Israel Aircraft Indus., Ltd.,
MATA Helicopters Div., B-274389 et al., Dec. 6, 1996, 97-1 CPD para. 41.
14. For example, PRC alleges that the agency improperly applied
general and administrative costs to the designated reimbursable costs
in determining the MPCs of the BAFOs.
15. Under the OFPP Act, as implemented at Federal Acquisition
Regulation (FAR) sec. 3.104, a procurement official is a person "who has
participated personally and substantially" in any of a list of
specified activities for a particular procurement. FAR sec.
3.104-4(h)(1). A person who is found to be a procurement official for
a particular procurement, for a period of 2 years, may not participate
on behalf of a competing contractor in the negotiations for award of a
contract under the procurement, nor participate in the performance of
such a contract. FAR sec. 3.104-3(d)(1).
16. The Army Inspector General's office is currently conducting an
investigation concerning [DELETED]. We note in this regard that PRC
has also speculated that General Rosenkranz may have violated 18
U.S.C. sec. 207(c)(1) (1994), which prohibited him from contacting any
officer or employee for 1 year after his retirement. General
Rosenkranz denies this allegation. Since this is not a matter subject
to our jurisdiction, we presume that the Inspector General's
investigation will consider it.