BNUMBER: B-275934
DATE: April 21, 1997
TITLE: Matter of:General Physics Federal Systems, Inc.
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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:General Physics Federal Systems, Inc.
File: B-275934
Date:April 21, 1997
William M. Weisberg, Esq., William T. Welch, Esq., and Monica C. Gray,
Esq., Barton, Mountain & Tolle, for the protester.
Paul F. Khoury, Esq., and David A. Vogel, Esq., Wiley, Rein &
Fielding, for EG&G Washington Analytical Services, Inc., an
intervenor.
James I. Menapace, Esq., and E.J. Hong, Esq., Department of the Navy,
for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protester's contention that agency question and answer session
constituted inadequate discussions with the protester--even though
agency attempted to specify in solicitation that question and answer
session following oral presentation would not constitute discussions,
and specify that material discussed in question and answer session
would be deemed unrelated to an offeror's proposal--need not be
reached by our Office where the record shows that the protester cannot
demonstrate a reasonable possibility that it was prejudiced by the
agency's actions.
2. Contention that agency unreasonably evaluated protester's proposal
under the technical evaluation factor is denied where the record shows
that the agency evaluation was reasonable and in accordance with
stated evaluation criteria.
DECISION
General Physics Federal Systems, Inc. protests the award of a contract
to EG&G Washington Analytical Services, Inc. pursuant to request for
proposals (RFP) No. N00024-96-R-6430, issued by the Department of the
Navy to procure technical and engineering support services for three
Navy programs--the New Attack Submarine Program, the Submarine
Electronics Systems Program, and the AN/BSY-2 Program. General
Physics argues that the Navy improperly held inadequate discussions
with it, and that the agency's evaluation of General Physics's
proposal was unreasonable.
We deny the protest.
BACKGROUND
The RFP, issued on June 28, 1996, anticipated award of a
cost-plus-award-fee level-of-effort contract to the offeror whose
proposal offered the best value to the government. The RFP advised
that in determining best value, the Navy would be willing to pay up to
a 30 percent premium for a technically superior approach.
The RFP requested potential offerors to submit three types of
information for review: a proposal, technical information, and cost
data. The RFP provided precise definitions for each of these terms.
An offeror's proposal was to consist of five discrete items: (1) a
completed standard form 33, entitled "Solicitation, Offer and Award";
(2) a completed section B from the RFP, entitled "Supplies or Services
and Prices/Costs"; (3) a completed section K, entitled
"Representation, Certifications, and Other Statements of Offerors";
(4) a Small, Small Disadvantaged, and Women Owned Small Business
Subcontracting Plan; and (5) a list of key personnel names. RFP at
92-93. No other information was considered part of an offeror's
proposal.
The second type of information, technical, was to be provided in two
parts, oral presentation slides and supplemental written information.
RFP at 96-98. The oral presentation slides were to include
information on personnel experience, technical approach, management
approach, and facilities and resources. Under each of these subject
areas additional elements were set forth in the RFP. The supplemental
information package was to include resumes for key personnel and
specialists personnel, a subcontracting management plan, and
information on corporate experience, past performance, and the
offeror's workforce loading plan. RFP at 98. The third type of
information to be provided was the offeror's cost data. Although
neither the technical information nor the cost data was considered
part of an offeror's proposal, both were required to be submitted by
the initial closing date.
Upon receipt of an offeror's submission--i.e., its proposal, technical
information and cost data--the RFP advised that the agency would
schedule an oral presentation to permit the offeror to explain the
subject areas and elements addressed in the oral presentation slides.
In addition, after the presentation of slides, offerors were required
to respond to a sample task provided 2 days prior to the oral
presentation. After discussion of the sample task, offerors were
required to participate in a question and answer session. RFP at 96.
The RFP set forth the following four evaluation factors for assessing
each offeror's proposal and technical information:
Personnel experience/corporate experience/past performance
Technical Approach
Management Approach
Facilities and Resources
The RFP further explained that the personal experience/corporate
experience/past performance evaluation factor would be significantly
more important than an offeror's technical approach; the technical
approach and management approach factors would be of equal weight; and
both the technical approach and management approach factors would be
significantly more important than the facilities and resources factor.
RFP at 132.
Finally, the RFP advised offerors that the Navy intended to award this
contract without discussions. With respect to the oral presentation,
the RFP advised:
"[t]he oral presentation and the question and answer session will
not constitute a part of the proposal, and the information
communicated thereby will not become a part of any contract
resulting from this RFP. Neither the oral presentation nor the
question and answer session will constitute discussions, as
defined in [Federal Acquisition Regulation sec. ] 15.601 and 15.610,
nor will they obligate the [g]overnment to conduct discussions or
to solicit or entertain any revisions to the offer or a best and
final offer."
RFP at 93.
By the July 30 closing date, the agency received submissions from
three offerors, General Physics, EG&G and Booz-Allen Hamilton.[1]
Upon receipt of the submissions, the technical information was
distributed to the technical evaluation review panel (TERP), and the
cost information to the cost analysis panel (CAP).
By letters dated August 2, each of the offerors was invited to provide
oral presentations. These letters advised that an invitation to make
a presentation did not mean that the offeror had been determined to be
in the competitive range. They also reiterated the Navy's view that
"neither the oral presentation nor the question and answer session
will constitute discussions" and admonished offerors not to discuss or
present any information contained in their proposals (as that term is
defined in the RFP). Navy's August 2 letters to the offerors.
General Physics made its oral presentation on August 9, and the other
two offerors made presentations shortly thereafter. All presentations
were attended by the members of the TERP and were videotaped.
During the course of the question and answer session, the Navy asked
General Physics--and each of the other offerors as well--how many of
the key personnel identified for this effort are also identified as
key personnel on other Navy contracts, and had any of those other Navy
offices agreed to release the key personnel identified here from their
prior commitments. When General Physics responded that [DELETED]
percent of its identified key personnel were already committed as key
personnel on other Navy contracts, and that it had not yet contacted
the other Navy offices involved, the evaluators assigned a high risk
rating under the evaluation factors for personnel experience/corporate
experience/past performance and technical approach.
On December 3, the TERP issued its report to the contract award review
panel (CARP). The TERP's report identified strengths, weaknesses,
risks, deficiencies, cross-impacts, and omissions in each proposal.
Strengths and weaknesses were described as major or minor; risks were
described as high, medium, or low. The TERP also assigned adjectival
ratings of outstanding, good, satisfactory, or unacceptable to each of
the evaluation factors. At approximately the same time, the CAP
provided its findings to the CARP, enumerating each offeror's proposed
and evaluated costs.
On December 10 and 17, the CARP completed its review of the CAP's and
TERP's findings, respectively, and assigned point scores to each of
the offerors, concluding that only Booz-Allen and EG&G were in the
competitive range. The assigned scores and proposed and evaluated
costs are set forth below:
OFFEROR SCORE PROPOSED
COSTS EVALUATED
COSTS
EG&G [DELETED] [DELETED] $107,524,326
Booz-Allen [DELETED] [DELETED] [DELETED]
General Physics [DELETED] [DELETED] [DELETED]
The CARP concluded that EG&G's submission offered the best value to
the government, and recommended award to EG&G. On December 17, the
Source Selection Authority accepted the CARP's recommendation, and the
contract was awarded to EG&G on December 20. This protest followed.
MEANINGFUL DISCUSSIONS
General Physics argues that the communication between it and the Navy
during the question and answer portion of the oral presentation
(regarding the availability of key personnel) constituted discussions.
Thus, General Physics argues, the Navy was required to advise it of
all weaknesses in its offer which had a significant adverse effect on
the proposal's evaluation, and to permit it to submit a revised offer.
The Navy does not deny that if discussions are held they must be
meaningful, or that upon conclusion of discussions all offerors must
be permitted to submit best and final offers; rather, the Navy argues
that the terms of the RFP here precluded any conclusion that
discussions were held under these circumstances. Specifically, the
Navy first contends that no discussions occurred because the RFP
expressly advised that the communications between the agency and
offerors during the oral presentation would not constitute
discussions. In this regard, the Navy also contends that this
challenge should be dismissed as untimely since the issue was apparent
on the face of the RFP and should have been challenged prior to the
date set for receipt of initial submissions.
The Navy also contends that the communication did not constitute
discussions because the RFP defined proposals so narrowly that
information about the availability of General Physics's key personnel
was not proposal information, and thus the communication could not
provide information essential for determining the acceptability of the
proposal. Accordingly, the Navy claims that none of the traditional
indicia for determining whether discussions occurred can be present.
Given our conclusion--discussed in detail below--that General Physics
was not prejudiced by the Navy's actions, we conclude that this is not
the appropriate case for a substantive ruling on whether the question
and answer session constituted discussions. Until such time as this
matter is raised by a party with a stake in the outcome, we will hold
in abeyance our views on whether this approach is consistent with
current statutory and regulatory requirements.
Our decisions sustaining protests that an agency held discussions with
only one offeror--a scenario found in a minority of our meaningful
discussions cases, which usually present distinctions between
clarifications and discussions or challenges to the adequacy of
discussions the agency intended to hold--have generally focused on the
inherent unfairness of agency actions that fail to provide
unsuccessful offerors the same opportunity as the awardee to improve
their relative standing in a negotiated competition. Raytheon Co.,
B-261959.3, Jan. 23, 1996, 96-1 CPD para. 37, at 11-12; Paramax Sys.
Corp.; CAE-Link Corp., B-253098.4; B-253098.5, Oct. 27, 1993, 93-2 CPD para.
282, at 6. In such cases, we generally conclude that if the protester
had been given the opportunity to address evaluator concerns during
discussions it would have submitted a materially revised proposal, and
the outcome of the competition might have been changed. Raytheon Co.,
supra, at 12, n. 11.
While this is the remedy General Physics seeks here, when the
protester itself is the entity with which the agency held discussions,
the record will often demonstrate that the protester was not treated
unfairly, and was not prejudiced vis-a-vis the awardee, because the
protester is the entity that was afforded an opportunity not made
available to other offerors. See The Winkler Co., B-252162, June 8,
1993, 93-1 CPD para. 444, at 7; Planning Research Corp., B-237201;
B-237201.3, Jan. 30, 1990, 90-1 CPD para. 131, at 5-6; Southwestern Bell
Tel. Co.; Northern Telecom, Inc., B-200523.3 et al., Mar. 5, 1982,
82-1 CPD para. 203, at 24-25. Even though we recognize that an
opportunity to submit a revised proposal often has the potential to
change the outcome of a competition, Raytheon Co., supra, without such
a showing of unfairness or unequal treatment in the conduct of the
negotiations, we will not sustain a protest and recommend submission
of revised proposals.[2] See The Winkler Co., supra; Planning
Research Corp., supra; Southwestern Bell Telephone Co.; Northern
Telecom, Inc., supra.
During the course of the question and answer session that occurred at
the oral presentations here, the record shows that the Navy followed
the procedures it advertised in its solicitation, and did not deviate
from those procedures in any way. The Navy convened one oral
presentation with each offeror, with three discrete parts: a detailed
technical presentation, a presentation in response to a sample task,
and a question and answer session. No additional communications
occurred, and at the end of the oral presentation--as stated in the
RFP--the Navy proceeded with its initial evaluation, did not open
formal discussions, and did not request revised proposals. Under
these circumstances, we cannot conclude that General Physics was
deprived of equal treatment, given that the exchange that occurred
during the question and answer session was, in effect, an opportunity
for General Physics--even though the result of the opportunity was a
decrease in its likelihood of award. Since there is no unfairness
associated with the exchange here--which could have resulted in an
improvement in the protester's competitive position--we cannot
conclude that the protester was prejudiced by the agency's actions.
See The Winkler Co., supra.; Emerson Elec. Co., B-213382, Feb. 23,
1984, 84-1 CPD para. 233, at 4-5.
TECHNICAL EVALUATION
Approximately 4 months after General Physics's oral presentation, the
TERP prepared its December 3 report to the CARP and concluded that the
company's submission was technically unacceptable. Based on this
conclusion, General Physics was excluded from the competitive range
shortly before award for purposes of computing the 30 percent best
value tradeoff set forth in the RFP.
General Physics argues that many of the conclusions of the evaluation
panel were improper and contends that the agency unreasonably
considered its proposal technically unacceptable. In considering a
protest against an agency's evaluation of proposals, we will examine
the record to determine whether the agency's judgment was unreasonable
and consistent with stated evaluation criteria and applicable statutes
and regulations. ESCO, Inc., 66 Comp. Gen. 404, 410 (1987), 87-1 CPD para.
450, at 7.
We have reviewed each of these claims and we find that the agency
reasonably concluded that the proposal was technically unacceptable.
For purposes of illustration, we will discuss two of these issues--the
Navy's finding that the proposal presented high risk under the
personnel experience/corporate experience/past performance evaluation
factor because [DELETED] percent of its key employees were currently
identified as key employees on other Navy contracts; and the major
weakness cited under the same evaluation factor because [DELETED]
percent of the key employees did not meet the experience requirements
in the RFP.
In arguing that the Navy acted unreasonably in assigning a high risk
because [DELETED] percent of General Physics's key personnel were
already committed as key personnel on other Navy contracts, General
Physics claims that the agency applied an unstated evaluation
criterion. While a quick review of the RFP verifies General Physics's
claims that there was no separate requirement that an offeror identify
only key personnel not committed to other contract efforts, we view
the agency's consideration of the availability of such personnel as
reasonably related to a comprehensive assessment of this factor. In
addition, we fail to see how the Navy's assignment of risk under this
factor can be termed unreasonable. With [DELETED] percent of General
Physics's personnel committed elsewhere, award to General Physics
would have risked either massive personnel substitutions on this
effort or significant disruption to other Navy efforts. Under this
circumstance, we find the Navy reasonably assigned a high risk under
this factor.
General Physics also argues that the Navy unreasonably assigned its
submission a major weakness under the personnel experience/corporate
experience/past performance evaluation factor because the Navy
concluded that [DELETED] percent of the company's key employees did
not meet the experience requirements in the RFP. The RFP here
required that each resume include a brief discussion of how the
individual meets the position requirements set forth in the labor
category definitions. RFP at 112. As stated above, at the conclusion
of their review, the evaluators found that [DELETED] percent of the
key personnel resumes did not explain how those individuals met the
solicitation's experience requirements. The Navy also provided
General Physics with a December 23 letter including a personnel matrix
explaining in detail the basis for the Navy's conclusions.
In its initial protest to our Office, General Physics did not take
issue with the Navy's specific findings, as explained in the December
23 letter, but instead supplemented the materials it provided to the
Navy with additional information about its key personnel in its
response to the agency report. In addition, the protester argues that
these were mere informational deficiencies that could have been
addressed with discussions. Even if the informational deficiencies
could have been addressed during discussions, the Navy was under no
obligation to hold discussions here. When an agency states its intent
to award on the basis of initial proposals--or, in this case, initial
submissions--offerors are required to provide in their initial
proposals all of the information necessary to permit the agency to
conclude that the proposal meets the solicitation's requirements.
Norden Sys., Inc., B-255343.3, Apr. 14, 1994, 94-1 CPD para. 257, at 7-8.
Here, our review of the record shows nothing unreasonable about the
Navy's assessments, and General Physics's approach of supplementing
its submission in its comments to our Office provides no basis to
conclude that the evaluation determination was unreasonable when made.
Given that the personnel experience/corporate experience/past
performance evaluation factor was significantly more important than
any other evaluation factor under the scheme set forth in the RFP, we
conclude that the agency reasonably assessed a major weakness and high
risk under this factor for General Physics's proposal. Similarly,
given these evaluation results, we see nothing unreasonable in the
final decision that the General Physics's proposal was technically
unacceptable.
The protest is denied.
Comptroller General
of the United States
1. Booz-Allen Hamilton has filed its own protest against this
procurement, B-275934.2, which raises different issues from those
raised by General Physics. Since the Booz-Allen protest was filed
here after the company first pursued an agency-level protest, it is
not ready for resolution and will be the subject of a separate
decision.
2. Despite the protester's assertion to the contrary, this approach is
consistent with our long-standing prejudice standard. Our Office will
not sustain a protest unless the protester demonstrates a reasonable
possibility of prejudice, 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, No.
96-1148, slip op. ___ (Fed. Cir. Dec. 19, 1996).